The Vocational Rehabilitation argument hit the courts once again. Luckily the impact is minimal.
The facts are fairly simple. In the case of Colleran v. WCAB (City of Los Angeles) B220878 (unpublished), applicant filed for vocational rehabilitation on 12/02/08 and the Rehabilitation Unit issued a decision in favor of applicant on December 29, 2008. The employer had 20 days to appeal but did not do so. It is possible they chose not to appeal since the enabling statute for vocational rehabilitation, Labor Code section 139.5, was repealed effective January 1, 2009.
The applicant attempted to enforce the Rehabilitation Unit’s decision and the Judge found in favor of the applicant as the employer did not file a timely appeal.
The employer filed a Petition for Reconsideration, arguing that the applicant’s vocational rehabilitation rights ceased with the repeal of Labor Code section 139.5 and that the applicant’s right to vocational rehabilitation was not “vested” prior to the repeal date.
The applicant filed a Writ of Review, which was accepted by the 2nd District Court of Appeal. In it’s decision, the 2nd District Court of Appeal noted in two previous appellate court decisions, any right that an applicant had to vocational rehabilitation benefits was terminated on the date of the repeal of Labor Code section 139.5, unless a final judgment has been made.
The 2nd District Court of Appeal distinguished the previous cases from the current case, noting that the employers had filed a timely appeal in both cases while in Colleran, the employer failed to file a timely appeal. The 2nd District Court of Appeal utilized the former Labor Code section 4645, which stated in effect that any determination or recommendation by the vocational rehabilitation unit shall be considered binding unless a Petition is filed with the WCAB within 20 days of the service of the determination.
In Colleran, the employer lost the right to contest the Rehabilitation Unit’s determination when it failed to file a timely appeal of the same, thus making the determination final as of December 29, 2008.
In real life practice, Colleran has little impact as almost all the rehabilitation cases at the time of the repeal of Labor Code section 139.5 on January 1, 2009 were not finalized thereby extinguishing vocation rehabilitation, or had a timely appeal of the adverse Rehabilitation Unit decision, with the same result. Only the failure to appeal an adverse Rehabilitation Unit decision that occurred prior to January 1, 2009 would possibly allow vocational rehabilitation benefits to be paid.