Attorneys Anxious to See WCAB Vacancies Filled

"...said he doesn’t know why it appears so hard to appoint new commissioners. But the effect of an understaffed WCAB, in some cases at least, is a long wait until cases are resolved, he said. One case has been pending before the WCAB for almost a year since commissioners agreed to hear an appeal, he added."   Alan Gurvey

The retirement of Ronnie Caplane as chairwoman of the Workers’ Compensation Appeals Board created a second vacancy and a growing desire among some attorneys to have a fully staffed panel of seven commissioners.

Vacancies on the appeals board were long a concern of Caplane, who retired on April 29 and took a vice president position with Zenith Insurance Co. She regularly mentioned during public appearances her “nagging” the governor to make additional appointments, saying other commissioners had to take on more work as a result of the unfilled positions. She said it was also more difficult to issue precedential en banc decisions with only five or six commissioners.

Richard “Jake” Jacobsmeyer, founding partner of work comp defense firm Shaw, Jacobsmeyer, Crain & Claffey, said that with only five commissioners, the workload for other members of the WCAB increases by about 20% to 25%. While the WCAB has in the past relied on deputy commissioners to handle some of the overflow, he said that’s really not their job.

At the same time, he said in some ways it’s better to have five commissioners rather than six. A six member WCAB could split 3-3 on en banc decisions, whereas with five members, it would be possible to have a majority decision.

There was at least one important issue relating to independent medical review timelines that split the board toward the end of Caplane’s tenure.

Caplane, Commissioners Marguerite Sweeney and Frank Brass said the Labor Code requirement that IMR decisions “shall” be issued within 30 days allows the WCAB to decide medical necessity if it takes longer for Maximus Federal Services to issue a decision.

Commissioners Deidra Lowe, Jose Razo III and Kathy Zalewski, all of whom were appointed by Gov. Jerry Brown, said there is no enforcement mechanism in the Labor Code, so the requirement to issue IMR decisions within 30 days is “discretionary.”

With the commissioners split evenly and unable to break the deadlock, those cases are now pending in appellate courts. The 2nd District Court of Appeal agreed to review the decision in California Highway Patrol v. WCAB, and the 3rd DCA agreed to hear Southard v. Hallmark Greeting Cards.

Jacobsmeyer said he thinks the bigger issue is that there is currently no chair for the WCAB.

“The thing that’s really going to be important is who is appointed as chair, because the chair gets to determine en banc or significant panel decisions, and also controls the workflow and how it gets done,” he said. “The chair has a big role in making those decisions, and that’s a big deal.”

Jacobsmeyer said he hasn’t heard any rumors about potential appointees or whether the governor will promote one of the current commissioners to serve as chair. He said historically, the chair position has been filled quickly and he expects a replacement for Caplane will be named soon.

For the other appointments, it comes down somewhat to “who gets the governor’s ear,” he said. 

Jacobsmeyer said the WCAB appointment process appears to have become more political over the last 20 or so years. Before Pete Wilson took office as governor in 1991, vacancies were filled quickly, he said. But Wilson and his successor, Gray Davis, seemed to use WCAB appointments as “political favors.”

He said he doesn’t know how big a favor a WCAB appointment actually is. Serving as a WCAB commissioner requires more work and commitment than some other appointments to boards or commissions that might meet once or twice a month, Jacobsmeyer said. But it still seems to be a political process as much as anything.

“At this stage, it appears the last four or five governors have all viewed WCAB as a political chip they can play, basically do a favor or balance off competing interests on the board,” he said.

Alan Gurvey, managing partner of applicant’s firm Rowen, Gurvey & Win, said he doesn’t know why it appears so hard to appoint new commissioners. But the effect of an understaffed WCAB, in some cases at least, is a long wait until cases are resolved, he said. One case has been pending before the WCAB for almost a year since commissioners agreed to hear an appeal, he added.

The WCAB in May 2015 granted the defendant's appeal of a workers’ compensation judge’s decision awarding Hilario Lopez round-the-clock home care for injuries he sustained in a 15-foot fall while working for Liberty Landscaping Inc., Gurvey said. The order was issued within the statutory time frame, but the case was being put in “for further review and study.” 

“It is absolutely ridiculous that the WCAB grants petitions for reconsideration within the timeframe allotted — for further study — then it goes into no-person’s land,” he said. “There are absolutely no guidelines for issuing a decision. Whether this is because there aren’t enough commissioners, or it’s intentional for one reason or another, or it’s just reckless, I do not know.”

Gurvey said he doesn’t believe the individual commissioners are to blame for the delays. Instead, he said he thinks it’s more that the system just allows it. If there was a full roster of commissioners, it could perhaps speed up the issuing of decisions, he said.

Bert Arnold, a partner at applicants’ firm Boxer & Gerson, and president of the California Applicants’ Attorneys Association, said he has heard that one of the commissioners plans to announce retirement fairly soon, which would create a third vacancy. The board is already understaffed, he said, and “it doesn’t seem the administration is doing anything.”

Three unfilled positions wouldn’t be unheard of for the WCAB or the Brown administration.

There were three vacancies on the WCAB at one point during the Davis administration. And there were three vacancies as recently as 2014 when Alfonso Moresi stepped down at the end of his term in February.

Brown, however, acted quickly and in April 2014 he appointed Kathy Zalewski as Moresi’s replacement. At the time, Zalewski was chief counsel for the Department of Industrial Relations.

The WCAB operated with two vacancies until May 2015 when Brown appointed Jose Razo III. For almost a year there was a single vacancy until Caplane retired at the start of the month, creating the second opening.

The governor’s office is unwilling to tip its hand about appointees or even the process for vetting applicants.

Deborah Hoffman, Brown’s deputy press secretary, on Wednesday said in an email, “we generally don’t comment on where we are in the process or reveal the names of applicants.”

Published on 05/19/2016 by WorkCompCentral, authored by Greg Jones