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The Kroger Co. et al v. Workers' Compensation Appeals Board and Miguel

October 30, 2012

THE KROGER CO. ET AL., PETITIONERS,
v.
WORKERS' COMPENSATION APPEALS BOARD AND MIGUEL RODRIGUEZ, RESPONDENTS.



(W.C.A.B. Nos. ADJ2065496, ADJ4050189) PROCEEDINGS to review a decision of the Workers' Compensation Appeals Board. Richard Shapiro, Administrative Law Judge.

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

CERTIFIED FOR PUBLICATION

Annulled and remanded.

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 As we explain in our opinion, the vocational rehabilitation program was repealed as of January 1, 2009.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to January 1, 2008 appears to surface from time to time, even though the scheme of vocational rehabilitation has been repealed.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.

PROCEDURAL HISTORY

Respondent Miguel Rodriguez, while employed as a grocery manager, sustained an injury to his left knee on November 24, 1999 in the course and scope of employment. He apparently sustained a second injury on December 30, 1999; both injuries were admitted and involved as employer a predecessor or subsidiary of petitioner Kroger. Rodriguez filed two workers' compensation claims.

On November 7, 2007, the Rehabilitation Unit awarded Rodriguez retroactive vocational rehabilitation maintenance allowance (VRMA) from March 10, 2000, the VRMA to continue beyond November 7, 2007. The notice of the award stated that an appeal of the award had to be filed within 20 days from the date the award was served.

On November 27, 2007, Sedgwick filed a document captioned "PETITION FOR APPEAL OF THE DETERMINATION OF THE REHABILITATION UNIT DATED NOVEMBER 7, 2007." This document is really more than a notice of appeal in that it sets forth at some length why the Rehabilitation Unit's award should be set aside. On the very next day, Sedgwick filed an amended petition for appeal of the determination of the Rehabilitation Unit in which it set forth in greater length its arguments on the merits of the appeal, with extensive documentation supporting the arguments.

On the same day that Sedgwick filed the aforesaid amended notice, i.e., on November 28, 2007, it filed, or attempted to file, a Declaration of Readiness to Proceed; following the usage of the parties, we will refer to this document as the "DOR." We say "attempted," in that the evidence is in conflict as to whether the DOR was actually filed. Since we conclude that the DOR was not required to perfect the appeal, it is of no moment when or whether the DOR was filed.

The DOR is a preprinted form on one page that in substance states, over counsel's signature, that the party filing the form is ready to proceed; the DOR also offers an opportunity to request a settlement or other like conference. It is much like the at issue memorandum in civil litigation and offers nothing of substance, other than the indication that the party filing the DOR is ready for the hearing or, as in this case, the hearing of the appeal.

The basis for filing a DOR when appealing a decision of the Rehabilitation Unit was former California Code of Regulations, title 8, section 10955 (section 10955), which provided in part: "Appeals from decisions of the Division of Workers' Compensation Rehabilitation Unit or an arbitrator appointed pursuant to Labor Code Sections 4645, subdivisions (b) and (c), shall be commenced as follows: [¶] (1) if an Application for Adjudication is already on file, by filing a Declaration of Readiness and a petition setting forth the reason for the appeal; [¶] (2) if no ...


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