Opinion
H034040 W.C.A.B. No. ADJ1510738 W.C.A.B. No. SJO0251902
12-21-2011
CHRISTINE BAKER, AS ADMINISTRATOR, etc., Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and X.S., Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
WRIT OF REVIEW
For an injured worker who receives total permanent disability or life pension payments through this state's worker's compensation scheme, Labor Code section 4659, subdivision (c) provides for the annual indexing of those payments to the yearly increases in the state's average weekly wage. Specifically, "[f]or injuries occurring on or after January 1, 2003, an employee who becomes entitled to receive a life pension or total permanent disability indemnity . . . shall have that payment increased annually commencing on January 1, 2004, and each January 1 thereafter, by an amount equal to the percentage increase in the 'state average weekly wage' as compared to the prior year. For purposes of this subdivision, 'state average weekly wage' means the average weekly wage paid by employers to employees covered by unemployment insurance as reported by the United States Department of Labor for California for the 12 months ending March 31 of the calendar year preceding the year in which the injury occurred." (Lab. Code, § 4659, subd. (c).)
Permanent disability and life pension payments are intended to compensate an injured worker for the long term residual effects of an industrial injury once the worker has attained maximum medical recovery. (Department of Rehabilitation v. Workers' Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1291.)
The Supreme Court granted review of our November 25, 2009 decision in this case, which had held that when an injured worker's total permanent disability payment, or life pension payment is calculated, that payment is subject to a cost of living adjustment (COLA) starting from January 1, 2004, and every January 1, thereafter.
In Baker v. Workers' Comp. Appeals Bd. (2011) 52 Cal.4th 434 (Baker),the Supreme Court held that Labor Code section 4659, subdivision (c) is to be interpreted to provide that COLAs be calculated and applied prospectively only, commencing on January 1 following the date on which the injured worker first becomes entitled to receive and actually begins receiving either a total permanent disability payment or life pension payment. (Id. at p. 439.)
Originally, the title of this case was Duncan v. WCAB and was published at 179 Cal.App.4th 1009.
In conformity with the Supreme Court's holding in this case and its remand to this court for further proceedings (Baker, supra, 52 Cal.4th at p. 451), we now issue a new decision.
Background
The background is taken from our 2009 decision in this case.
On or about June 19, 2007, an injured worker (the Worker) and his employer's insurance company settled the Worker's claim for an industrial injury that occurred on January 20, 2004. The parties stipulated that the Worker's injury became permanent and stationary on October 20, 2006; and that the industrial injuries caused permanent disability of 69.5 percent for which permanent disability indemnity was payable at the rate of $200 per week beginning October 20, 2006, for a period of 437 weeks. The Worker had received temporary disability benefits from 2004 to 2006. However, because the Worker had a pre-existing disability caused by Hepatitis B and his HIV positive status, the Worker submitted a claim to the Subsequent Injuries Benefit Trust Fund of the State of California (SIBTF) about a month after he settled with his employer.
The Worker was paid temporary disability from 1/20/04 to 12/16/04 and then 12/31/04 through 10/19/06 at the rate of $728 per week.
On or about March 25, 2008, SIBTF and the Worker stipulated that the Worker's January 20, 2004 injury resulted in a 69.5 percent industrial permanent disability, which became permanent and stationary on October 20, 2006; that October 20, 2006, was the date of his first payment for permanent disability; and that the Worker's previous permanent disability combined with his industrial disability resulted in a combined total permanent disability of 100 percent. Accordingly, the worker would receive $528 weekly payments for total permanent disability as of October 20, 2006 ($728 less $200 paid by the insurance company for Worker's employer), for 422 weeks, and thereafter $728 weekly for life.
Subsequently, it appears that a dispute arose after the Worker claimed the initial $728 weekly rate that started October 20, 2006, had to be increased by annual changes in the state average weekly wage starting from the date of his injury -- January 20, 2004 -- to the date payments became due -- October 20, 2006.
On July 15, 2008, the Workers' Compensation administrative law judge (WCJ) issued a FINDINGS and AWARD against the SIBTF. Specifically, the WCJ found that by failing to implement Labor Code section 4659, subdivision (c) in a timely fashion, the SIBTF delayed payments to the Worker in the sum of $3,585.56; and that increased payments to the Worker should have begun on January 1, 2005. The WCJ based these findings on an interpretation of Labor Code section 4659, the application of which to the facts of the case the WCJ found "somewhat puzzling."
After the SIBTF appealed to the Workers' Compensation Appeals Board (WCAB), the WCAB issued its opinion and decision. The WCAB construed Labor Code section 4659, subdivision (c) to mean that for each payment of total permanent disability indemnity or life pension received, a COLA should be added starting on or after January 1 following the date of injury, no matter when the first payment is actually received.
Following the WCAB's decision, the SIBTF petitioned this court for a writ of review, which this court granted on June 30, 2009. As noted, we issued our decision on November 25, 2009 and the Supreme Court granted the SIBTF's petition for review. (Baker, supra, 52 Cal.4th at p. 442.)
Consistent with the Supreme Court's decision in this case we now hold that the WCAB erred in concluding that each total permanent disability payment or life pension payment should be increased by a COLA each year starting January 1 following the date of injury. Rather, COLAs should be calculated and applied prospectively commencing on January 1 following the date on which the injured worker first becomes entitled to receive and actually begins receiving either a total permanent disability payment or life pension payment. (Baker, supra, 52 Cal.4th at p. 439.) That is, a COLA should be applied from January 1 following the "permanent and stationary date in the case of total permanent disability benefits, and the date on which partial permanent disability benefits become exhausted in the case of life pension payments." (Ibid.) Accordingly, we remand this case to the WCAB for further proceedings.
Disposition
The WCAB's decision is annulled, and the matter is remanded to the WCAB for further proceedings.
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ELIA, J.
WE CONCUR:
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PREMO, Acting P. J.
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Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice Pursuant to article VI, section 6 of the California Constitution.
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