Weiner v. Ralph’s Comany, permissibly self-insured (June 10, 2009) In an En Banc decision, the WCAB has put an end to the discussion on the sunset of vocational rehabilitation benefits pursuant to Labor Code Section 139.5.
According to the WCAB, the repeal of Labor Code Section 139.5 terminated any rights to vocational rehabilitation benefits that were not final before January 1, 2009. Any vocational rehabilitation rights in cases still pending on or after January 1, 2009 are not protected and can no longer be heard.
The prior 2003 repealed vocational rehabilitation statutes are no longer in effect and cannot be used as “ghost statutes” now that Labor Code 139.5 is repealed. . Lastly, the WCAB only has continued jurisdiction over vested rights. The WCAB cannot grant jurisdiction over non-vested rights by consent or stipulation.
In short, if a final order on Vocational Rehabilitation had not issued prior to January 1, 2009, Applicant is out of luck. At least for now.
The Courts of Appeal will take on this issue next. Currently, the 2nd District Court of Appeal has granted a writ in Beverly Hilton v. WCAB, a case which involves similar issues. Typically, the Courts of Appeal like to defer to the WCAB, thus is it likely that Vocational Rehabilitation benefits are done for good.