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Allied Waste Industries, Inc., et al. v. Workers' Compensation Appeals Board and Rogelio Rojas

December 6, 2010

ALLIED WASTE INDUSTRIES, INC., ET AL. PETITIONERS,
v.
WORKERS' COMPENSATION APPEALS BOARD AND ROGELIO ROJAS, RESPONDENTS.



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

Allied Waste Industries v. WCAB (Rojas)

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Labor Code section 4659, subdivision (c) provides a cost of living adjustment (COLA) for injured workers entitled to a life pension or total permanent disability indemnity. (Unspecified section references that follow are to the Labor Code.) This appeal involves an issue currently pending before the California Supreme Court, namely, the effective date of this adjustment. (Duncan v. Workers' Compensation Appeals Board (2009) 179 Cal.App.4th 1009, review granted Mar. 24, 2010, S179194 (Duncan).) We conclude that an injured worker is entitled to a COLA as of the January 1st following the date of injury. Because the Workers' Compensation Appeals Board (the Board) used a different starting date, we annul its decision and remand for further proceedings.

FACTS AND PROCEEDINGS

Rogelio Rojas (applicant) was seriously injured while working as a garbage truck driver for petitioner Allied Waste Industries, Inc. Applicant was deemed temporarily disabled from the date of his injury, February 18, 2005, through March 13, 2009, at which time he was deemed to have a permanent total disability. He received workers' compensation benefits throughout this period, and his attorney received an interim award of attorney fees.

At a workers' compensation hearing in October 2009, the parties stipulated to the underlying facts and also stipulated that applicant needed further medical treatment. Trial centered on three legal issues: (1) whether applicant, having been rated as permanently disabled, was entitled to a 15 percent increase in his disability award (see § 4658, subd. (d)), (2) when the COLA outlined in section 4659, subdivision (c) began, and (3) the total due for attorney fees, a calculation that depended on the amount of the underlying award, including any COLA adjustment.

On December 31, 2009, the administrative law judge (ALJ) awarded applicant the 15 percent increase and, pursuant to Duncan, a recent appellate decision described in greater detail below, determined that applicant was entitled to a COLA beginning January 1, 2004, even though his injury did not occur until February 2005. The ALJ ordered additional medical treatment for applicant and awarded counsel a total of $386,515.32 in attorney fees.

Petitioner sought reconsideration. The Board granted the petition and issued an order reversing the ALJ's decision in so far as it awarded applicant a 15 percent increase in permanent disability indemnity. However, the Board rejected respondent's challenge to the COLA calculation, concluding that it too was constrained by the Duncan decision.

Petitioner sought a writ of review, asserting that the Board erred in ruling that the COLA adjustment should be calculated as of January 1, 2004, and we granted the petition.

DISCUSSION

Before embarking on our analysis of petitioner's claim, we briefly review some fundamentals of the workers' compensation system.

A "temporary disability" is one that is expected to be cured or materially improved with medical care. (Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 235) Temporary disability indemnity is the basic benefit paid in this situation, and it is intended as wage replacement assistance during the time the employee is unable to work. (Ritchie v. Workers' Comp. Appeals Bd. (1994) 24 Cal.App.4th 1174, 1179.) "Depending on the severity of the injury, workers can be deemed partially or totally temporarily disabled and will receive ...


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