At a recent educational program, a speaker told the attendees that the WCAB en banc decisions were “on hold” pending the WCAB’s decision after reconsideration. The defendants in each case had filed a Petition for Reconsideration of the WCAB’s en banc decisions and those petitions are now pending before the WCAB. In its Order Granting Reconsideration of all three cases (Ogilvie, Almaraz/Guzman), the WCAB has set up a briefing schedule for any interested party to submit amicus briefs after which time the Board will issue its decisions after reconsideration. In Ogilvie, a Petition for Writ of Review was filed by the Defendant at the District Court of Appeals and that writ was denied as premature since the WCAB granted reconsideration of its own en banc decision.
So where does this leave us? There are conflicting opinions abounding between judges and attorneys as to whether the en banc decisions are still binding on WCAB panels, judges and parties in all pending cases. The simple answer to the question is “yes, the cases are still binding on everyone until they are stayed, modified, altered, vacated or reversed.”
Labor Code Section 5910 states: “The filing of a petition for reconsideration shall suspend for a period of 10 days the order, decision or award affected, in so far as it applies to the parties to the petition, unless otherwise ordered by the appeals board. The appeals board upon the terms and conditions which it by order directs, may stay, suspend, or postpone the order, decision, or award during the pendency of the reconsideration.”
It appears from a review of the record, that the WCAB did not issue a stay order in any of the three cases. In fact, only one of the commissioners voted to issue a stay order pending reconsideration of the en banc decisions.
In the absence of a request by a party to issue a stay order and in the absence of the WCAB itself issuing a stay order, the WCAB en banc decisions are still binding on all judges and WCAB panels, pending the WCAB’s decision after reconsideration. See Greitz vs. Sivachenko (1957) 152 Cal. App. 2d 849, 22
Cal. Comp. Cases 176.
At another educational conference held on April 25, 2009, the Chairman of the WCAB in response to a question from the audience stated that no one had requested a stay order pending reconsideration by the WCAB of their decisions in Almaraz-Guzman and Ogilvie. In fact Chairman Joseph Miller cited the WCAB Significant Panel Decision, Diggle vs.
School District (2005) 70 Cal. Comp. Cases 1480. In Diggle, the WCAB held that WCAB en banc decisions remain binding precedent on all WCAB panels and WCJs pursuant to 8 Cal. Code Reg. Section 10341, even though a petition for writ of review has been granted.
Section 10341 states: “En banc decisions of the Appeals Board are binding on panels of the Appeals Board and workers’ compensation judges as legal precedent under the principle of stare decisis."
The panel in Diggle held that WCAB en banc decisions remain in full force and effect until an appellate court either issues its own stay order or explicitly or implicitly overrules the WCAB en banc decisions, citing Labor Code Section 5956 which indicates that in the absence of a stay order by an appellate court, a decision by the WCAB remains in full force and effect.
In Almaraz-Guzman and Ogilvie, there was no stay order issued by any court, including the WCAB or any appellate court. So the decisions remain binding on all WCAB panels and judges and Labor Code Section 5910 mandates that these decisions remain in full force and effect pending any further decisions by the WCAB itself.
[Editor's Note: You might want to check out Cortez v. Supercuts, a WCAB panel decision issued 4/17/2009, which gives instructions to a WCJ on how to deal with the case pending the WCAB's granting of reconsideration in Almaraz/Guzman. Click here to access it. You can register for free at our site to access all of the materials in the free downloads section.]