SB 899 reenacted Labor Code §139.5 extending the right of Qualified Injured Workers injured prior to January 1, 2004 to vocational rehabilitation services until January 1, 2009, when Vocational Rehabilitation was due to “Sunset.”

Since SB 899’s April 19, 2004 effective date applicant’s with dates of injury prior to 2004 had more almost five years to perfect their right to vocational rehabilitation services, and the last few months of 2008 witnessed a flurry of activity from the applicant’s bar attempting to perfect their client’s right to vocational rehabilitation services.

In Weiner v. Ralphs Co.(en banc 8/17/09) 74 CCC 958, the Court held that even if the Workers’ Compensation Appeals Board assumed that some Vocational Rehabilitation Maintenance Allowance (VRMA) was indisputably due applicant prior to January 1, 2009, this did not mean that applicant’s right to VRMA had vested. Since there was not a final order or award of VRMA, the repeal of Labor Code § 139.5 extinguished applicant’s right to such award.

The Second District Court of Appeal followed Weiner in Beverly Hilton v. Workers’ Compensation Appeals Board (Boganim) (8/26/09) 74 CCC 927. Here, a Workers’ Compensation Judge found that Applicant was presumptively eligible and entitled toVRMA pursuant to the recommendations of the Rehbiliation Unit. Defendant timely petitioned for review which was pending on January 1, 2009. The Court determined that until judgment is entered and the appellate process is complete, the matter is not final and thus not vested. There is no indication the Legislature intended to save vocational rehabilitation rights or remedies after January 1, 2009, and neither the Board nor a reviewing court had jurisdiction to award such rights after January 1, 2009.

This would seem to end disputes over the jurisdiction of the Workers’ Compensation Appeals Board to award VR benefits after January 1, 2009, but perhaps not. A recent case, L.A. County Fire Department v. WCAB B214649, the Second District asked for additional briefing on a slightly different vocational rehabilitation issue that may not have been final before January 1, 2009. The court recently granted the employer’s petition for a writ of review. Apparently, the issue raised involves former Labor Code §4642 and the ability to award VR indemnity at a rate other than the VRMA rate. Applicant is arguing that VR benefits were already awarded and were not appealed. Defendant is appealing payment of VRMA at the temporary disability rate. The case is still pending but it’s important to note that former Labor Code §4642, which authorized payment of VRMA at the temporary disability rate was also repealed.

It’s hard to imagine a situation where a final Award or Order did not include the exact rate the carrier was supposed to use to pay VRMA. Unfortunately, the parties briefings are not yet available, and it will be interesting to see exactly how this case made it past Weiner to be taken up by the same court that decided Beverly Hilton.