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California: Supreme Court Declines Rehearing in Baker, Modifies Opinion Without Change in Result

October 20, 2011 (3 min read)

The California Supreme Court has issued its decision denying the Petition for Rehearing filed by applicant in Baker v W.C.A.B. (XYZZX).  The court did make some modifications to its opinion that to some extent addressed the issues raised in applicant attorney’s Petition but to some extent the Court’s language suggests a lack of understanding of some aspects of workers’ compensation.

The Court did not answer all of the questions that arise under Labor Code § 4659 especially for cases after 4/19/2004 (Baker was a 2003 injury).   The Court declines to address the issue of what happens if Permanent Total Disability (or, at least, conceptually a Life Pension although that is very unlikely to occur) starts before the employee is P & S where TTD has stopped pursuant to Labor Code § 4656(d).  The Court has tied this decision to the commencement of benefits after P & S and not just to commencement of the PTD or life pension benefits.  I am not certain I would want to suggest the distinction is a seriously meaningful one but the Court certainly draws a distinction and leaves the issue unanswered.

However the Court does not seem to understand that TTD is not indexed to the COLA. While this misunderstanding of the effect of Labor Code § 4661.5 on TTD does not appear to be a cornerstone of the Court’s analysis, the lack of understanding of when TTD increases is puzzling;

“It is unreasonable to infer that the Legislature intended two distinct anti-inflation measures to overlap and apply to the calculation of the same total permanent disability payment rate.  Moreover, workers who sustain industrial injuries qualifying them for total permanent disability payments receive temporary disability payments which, depending on the date of injury, may themselves be indexed to the SAWW, thereby protecting the worker from the effects of inflation during the period of eligibility for temporary disability benefits.  (See §§ 4453, subd. (a)(10), 4653, 4661.5.”

The minimum and maximums for TTD are indexed under Labor Code § 4453(a)(10) but injured workers only receive the benefit of such indexing to the extent earnings support the increases but TTD itself is not indexed to the COLA.  Additionally since Labor Code § 4661.5 does not affect any benefits until 2 years after the date of injury, the Courts observation that IW are protected from inflation based on increases in TD under Labor Code §  4453, subd. (a)(10), 4653 & 4661.5 does not appear accurate.  We can anticipate the Court’s mischaracterization of the impact of Labor Code § 4661.5 may be used by applicant attorneys to try and cause some mischief in the future.  However the language is dicta at best and certainly is not part of the Courts holding in this case.  The Court is not interpreting Labor Code § 4653, just making an observation about it.

I have attached a copy of the Court’s original decision with the changes interlineated and tracked so that you can follow the changes within the decision itself.  A copy of the decision issued today is embedded in the case name above.

© Copyright 2011 Richard M. Jacobsmeyer. All rights reserved. Reprinted with permission.


Shaw Jacobsmeyer Crain Claffey


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