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California: What Decisions Rule and When Do They Rule?

October 11, 2011 (6 min read)
In last month’s blog, we set forth a chronology of the significant case law on permanent disability determinations. The list has been updated and set forth again below:

Chronology of Significant PD Rating Cases:
12.7.06
Costa v. Hardy Diagnostic, (Costa I) (2006) 71 CCC 1797; WCAB en banc re rebuttal of 2005 PDRS rating using VR experts.
11.13.07
Costa v. Hardy Diagnostic (Costa II), (2007) 72 CCC 1492; WCAB en banc re rebuttal of 2005 PDRS rating using VR experts. Costa I affirmed.
2.3.09
Almaraz v. Environmental Recovery / Guzman v. Milpitas Unified (Almaraz /Guzman I), (2009) 74 CCC 201; WCAB en banc—rebuttal of strict AMA rating.
2.3.09
Ogilvie v. City and County of SF, (Ogilvie I) (2009) 74 CCC 248; WCAB en banc—rebuttal of DFEC.
9.3.09
Almaraz v. Environmental Recovery / Guzman v. Milpitas Unified (Almaraz II/Guzman II), (2009) 74 CCC 1084; WCAB en banc—rebuttal of strict AMA rating
9.3.09
Ogilvie v. City and County of SF, (Ogilvie II ) (2009) 74 CCC 1127; WCAB en banc—rebuttal of DFEC.
6.3.10
Blackledge v. BofA, (2010) 75 CCC 613 (WCAB en banc) WCAB defined the roles of Dr, WCJ & rater in determining PD.
8.19.10
Milpitas Unified v. WCAB (Guzman III), (2010) 75 CCC 837; 6th DCA affirmed the decision of the WCAB w/op. (Supreme Court denied writ.)
6.16.11
SCIF v. WCAB (Almaraz III), (2011) 76 CCC 687 (5th DCA writ denied) (Supreme Court denied writ on 8.24.11)
7.29.11
Ogilvie v. WCAB, (2011) 76 CCC 624; 1st DCA—rebuttal of DFEC (On 9.7.11 defense filed a Petition for Review w/the Supreme Court.)
There has been some confusion lately, as to when a decision is considered binding precedent and upon whom it is binding. Therefore, set forth below is a brief primer on the topic.
A. What is a “decision”?
Cal. Const., art. VI, §14 defines decision as that which determines causes and “shall be in writing with reasons stated.” Therefore a Grant of a Writ of Review is not a “decision.”
Cal Rule of Court 8.1115(d) states “a published California opinion may be cited or relied on as soon as it is certified for publication or ordered published.”
B. Which decisions are citable and considered binding precedent?
WCAB en banc decisions are citable and binding precedent. (See 8 CCR §10341; City of Long Beach v. WCAB (Garcia) (2005), 70 CCC 109, fn. 5 Gee v. WCAB, (2002) 67 CCC 236; fn. 6; Govt. Code §11425.60(b).) 
WCAB Significant Panel decisions (SPD) are citable, but are not binding precedent. (See Smith v. WCAB, (2000) 65 CCC 277, page 280 at fn 2.)
CWCR panel decision summaries are citable, but are not binding precedent. (See Griffith v. WCAB, (1989) 54 CCC 145 at fn. 2. See also Smith v. WCAB, (2000) 65 CCC 277, page 280 at fn  2.)
WCAB panel decisions are citable, but are not binding precedent. (See Footnote 7 in Guitron v. Sante Fe Extruders (2011) 76 CCC 228 en banc: “While it is true that Appeals Board panel decisions are not binding precedent and have no stare decisis effect…, we consider them to the extent we find their reasoning persuasive. Unlike unpublished appellate court opinions, which, pursuant to California Rules of Court, rule 8.1115(a), may not be cited or relied on, except as specified by rule 8.1115(b), Appeals Board panel decisions are citable, even though they have no precedential value.”
C. Is a “decision” nullified if a Petition for Writ of Review is filed?
WCAB en banc decisions remain in effect unless and until the DCA or Supreme Court overrules or stays the decision per LC §5956.  (See Diggle v. Sierra Sands Unified School District, (2005) 70 CCC 1480.)
LC §5956 states: “The filing of a petition for, or the pendency of, a writ of review shall not of itself stay or suspend the operation of any order, rule, decision, or award of the appeals board, but the court before which the petition is filed may stay or suspend, in whole or in part, the operation of the order, decision, or award of the appeals board subject to review, upon the terms and conditions which it by order directs, except as provided in Article 3 of this chapter.” (Emphasis added.)
D. What if Petition for Review is granted by Supreme Court?
DCA decisions are automatically vacated if a Petition for Review is granted by the California Supreme Court.
Cal Rules of Ct §8.1105(d) states: “a [DCA] opinion is no longer considered published [in effect] if the Supreme Court grants review or the rendering court grants rehearing.”

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