The question in the title of the post is really a question about the WCAB’s rationale – not their end legal justification behind Weiner. I believe the Weiner case hints that the WCAB is going to go the other way and uphold their rulings in Almaraz/Guzman and Ogilvie.
However, I think the WCAB’s rationale for ending vocational rehabilitation was because of the potential for enormous retroactive vocational rehabilitation maintenance allowance awards at the temporary total disability rate outside the cap (VRTD). ((Photo courtesy of Stephane Raymond)) ((You see, I’m suggesting that the bathwater is VRTD and the baby itself is vocational rehabilitation. Kinda kills the metaphor, eh?))
Obviously, you’ll need to read and interpret Weiner v. Ralph’s for yourself. Here’s the Board’s own summary:
The repeal of section 139.5 terminated any rights to vocational rehabilitation benefits or services pursuant to orders or awards that were not final before January 1, 2009
A saving clause was not adopted to protect vocational rehabilitation rights in cases still pending on or after January 1, 2009
The vocational rehabilitation statutes that were repealed in 2003 do not continue to function as “ghost statutes” on or after January 1, 2009
Effective January 1, 2009, the WCAB lost jurisdiction over non-vested and inchoate vocational rehabilitation claims, but the WCAB continues to have jurisdiction under sections 5502(b)(3) and 5803 to enforce or terminate vested rights; and
Subject matter jurisdiction over non-vested and inchoate vocational rehabilitation claims cannot be conferred by waiver, estoppel, stipulation, or consent.
What does Weiner v. Ralph’s mean to you?
Vocational rehabilitation is gone unless there is a “vested” right by way order that became final prior to 1/1/2009.
If you already have a final order for vocational rehabilitation, the WCAB can still hear a dispute.
I’ve just finished the COLA / SAWW future life pension rate calculator to determine what the future life pension rates are assuming a COLA / SAWW increase of 4.7% per year. If you’re interested in becoming a beta tester for this COLA / SAWW calculator for life pension increases, please drop me a line and ask for access. ((If you have already helped me out as a beta tester, you already have access to this calculator.))
Please keep in mind that this is not a life pension with SAWW / COLA increase commutation calculator. The actuarial math involved in performing that calculation is … intense.
As an interesting side note, this week I saw my very first DEU commutation of a life pension with COLA increase. Unlike the typical commutations everyone receives from the DEU, this commutation calculation was devoid of the actual methodology used. I was pretty disappointed to find this out.
No matter! Help beta test the new calculator by dropping me a line. After you’ve given it a whirl, let me know what you think.
Last week while Steve was at the Sacramento WCAB he heard about a recent case that held the COLA / SAWW adjustments and increases are calculated based upon the first January 1 following the date of injury. ((COLA = cost of living adjustment.)) ((SAWW = state average weekly wage.))
This case involving SIF (the subsequent injuries fund) is from the San Jose WCAB. The name of the case is “XYZZXSJO2 v. Subsequent Injuries Benefits Trust Fund, ADJ 1510738, SJO 0251902”. The name of the Applicant was anonymized to protect their identity. ((I hope to have a scan of this decision for you soon!)) ((David DePaolo of WorkCompCentral.com has graciously allowed me permission to offer you a copy of XYZZXSJO2 for download! Thanks David!))
Thus far the conventional wisdom has been that the COLA/SAWW increases are calculated starting with the first January 1 after life pension gets paid out. This is a tremendous change in the COLA/SAWW calculation of life pension.
Assuming a 1/1/2003 injury at exactly 70% permanent partial disability, there would be 426.5 weeks of permanent disability paid after the permanent and stationary date before the life pension gets paid out. This equates to 8.2 years from the permanent and stationary date that has, thus far, not been taken into account with life pension calculations to date. To put this in perspective, if someone had an injury on 1/1/2003 and became P&S on that same date ((Not likely.)) , the traditional method of calculating the life pension with COLA / SAWW increase would be too low by approximately 44%.
At the moment I’m finalizing a COLA / SAWW life pension calculator to determine what the future life pension rates are assuming a COLA / SAWW increase of 4.7% per year. If you’re interested in becoming a beta tester for this COLA / SAWW calculator for life pension increases, please drop me a line and ask for access.
Unfortunately, I don’t have a citation for the 4.7% COLA / SAWW increase, but I believe it to be the offiical average used by the DEU ((Disaiblity Evaluation Unit.)) to calculate commutations of COLA / SAWW increases and adjustments. If you have an official citation or document from the DEU, please drop me a line so I can include that citation here!
