Attorneys Hopeful for Quick Filling of Latest WCAB Vacancy

“It has been particularly frustrating waiting for a decision in this case, since the injured worker lives by himself and is in need of the home care and indemnity payments,” Gurvey said. “He doesn’t have family members who live with him to help him. We also argued that the (workers’ compensation judge) erred in the disability rating, which has resulted in a far lower compensation than he should be entitled to under prevailing law.”

Attorneys hope Gov. Jerry Brown will act quickly to fill at least one vacancy on the Workers’ Compensation Appeals Board.

The board has been short-staffed since at least 2014, and has had two vacancies since April 2016. With Frank Brass retiring in January, the board now has four commissioners and three open positions.

Jason Marcus, a partner at the Law Offices of Marcus, Regalado and Marcus in Sacramento and president of the California Applicants’ Attorneys Association, said more vacancies mean more work for the remaining commissioners, and a higher caseload can lead to delays when it comes to issuing decisions.

Marcus said he hasn’t personally observed any big delays in decisions, which he said was likely the result of the board relying on deputy commissioners to take up some of the slack resulting from the vacancies.

“That being said, I do believe it’s important to fill the vacancies on the WCAB, and I hope that our governor acts soon,” he said.

Louis Larres, a senior partner in the Fresno office of work comp defense firm Bradford and Barthel, also noted that an understaffed WCAB can delay decisions.

Larres, who heads up the appellate division for Bradford and Barthel, said he is seeing what appear to be more cases in which the commissioners are granting an order to approve a petition for reconsideration within the 60 days allowed by law, but the cases then sit around for a while.

Larres said some of his cases that are pending involve complex facts that could take time for the commissioners to sift through, but they don’t involve completely novel or unique disputes.

He said he doesn’t know whether there is a direct correlation between WCAB vacancies and how long it takes to issue a decision, but he thinks it could be the result of each commissioner having to take on more work.

“It would be nice to see the governor appoint someone to ensure prompt decisions from the WCAB,” he said.

Alan Gurvey, managing partner of applicants’ firm Rowen, Gurvey and Win in Sherman Oaks, said he appreciates the difficult job commissioners have but also said there are a number of cases that have not been adjudicated “presumably due to the work overload.”

During CAAA’s convention in January, WCAB Secretary Anne Schmitz said there were about 30 cases that could be considered serious injury cases in which decisions were pending, according to Gurvey. Schmitz said the WCAB is doing what it can to work through the caseload, but the pace of decisions is slowed because the board is operating without the full complement of commissioners.

In May 2016, Gurvey told WorkCompCentral about a case of his that was pending before the WCAB for almost a year after commissioners agreed to hear an appeal. The WCAB in May 2015 agreed to hear an appeal of a decision awarding Hilario Lopez round-the-clock home care for injuries he sustained in a 15-foot fall while working for Liberty Landscaping Inc.

On Monday, Gurvey said the Lopez case settled before the WCAB issued a decision.

“It was very frustrating waiting for the decision, but it did motivate the parties to settle,” he said.

Gurvey said another client had a case involving 24-hour home care that went up to the WCAB. After waiting on a decision for over a year, the issue was returned to the trial judge to further develop the record. That case also settled.

Gurvey said he has a third case involving home health care that is still pending before the WCAB. He says he has requested three status updates and was told each time that the case was still being reviewed. He said he feels he’s personally been ineffective because he has not been able to help his client.

“It has been particularly frustrating waiting for a decision in this case, since the injured worker lives by himself and is in need of the home care and indemnity payments,” Gurvey said. “He doesn’t have family members who live with him to help him. We also argued that the (workers’ compensation judge) erred in the disability rating, which has resulted in a far lower compensation than he should be entitled to under prevailing law.”

Richard “Jake” Jacobsmeyer, a founding partner of work comp defense firm Shaw, Jacobsmeyer, Crain & Claffey in Oakland, said for at least the past 15 years — going back to the administration of former Gov. Gray Davis — California has “not had a governor interested in getting this thing filled.”

Jacobsmeyer said an understaffed appeals board generally means fewer viewpoints are considered when commissioners deliberate on a case. And having just four commissioners can interfere with the board’s ability to issue precedential en banc decisions.

He noted that the WCAB last week issued a unanimous en banc decision finding that the deadline for lien claimants to submit the declaration required by Senate Bill 1160 was July 3, 2017, because the deadline set by statute fell on a Saturday. Jacobsmeyer said the question in Hernandez v. Henkel Loctite Corp. et al. was relatively straightforward.

With difficult questions and only four commissioners, it’s possible for the board to split 2-2 he said. An even number of commissioners means there may not be a decision on close calls, even though a difficult decision needs to be made. And while an odd number of commissioners is necessary to prevent ties, Jacobsmeyer said going to three would not be workable.

“I’d love to have seven, but at least five is the minimum requirement,” he said.

Jacobsmeyer said he understands that serving on the WCAB is different from a lot of gubernatorial appointments in that it’s a “working position.” While appointees to some panels might need to attend only a handful of meetings a year, WCAB commissioners work from 8 a.m. to 5 p.m. Monday through Friday.

Although the position requires more work than the standard appointment, Jacobsmeyer said he thinks there are qualified candidates who would be interested in joining the WCAB.

“I think there are people who would like to have it,” he said. “I don’t think there would be any trouble finding people to take the position. I wouldn’t expect that’s the issue.”

If history is any indication, it’s possible for the WCAB to continue operating with just four commissioners until the next governor is sworn in.

The WCAB last had three vacancies after Alfonso Moresi stepped down at the end of his term in February 2014. Brown didn’t appoint Kathy Zalewski to replace Moresi until April 2015. The following month, he appointed Jose Razo III, and the WCAB operated with six of seven positions filled until former Chairwoman Ronnie Caplane retired in April 2016.

The governor’s office has not made any appointments since then and was tight-lipped when asked about the vacancies on Monday. WorkCompCentral asked whether the governor feels that the WCAB operated effectively without a full slate of commissioners, and whether any candidates are currently being interviewed to fill any of the three vacancies.

Ali Bay, deputy press secretary for the governor, said in an email that there is no time line to fill any vacancies, “but we are working, as we always do, to find the best and most qualified individuals from a diverse pool of candidates.”

Published by WorkCompCentral, by Greg Jones