Spotlight on CLA WC Section Unpublished Opinions Subcommittee and Legislative Subcommittee

by Kenneth Peterson (WCAB Chief Regional Judge (Retired))

Unpublished Opinions Subcommittee

The CLA Workers’ Compensation section established the Unpublished Cases Review and Legislation Subcommittees as permanent standing groups. I have the privilege of serving as chair of both subcommittees.  The former reviews all cases originating with the Workers’ Compensation Appeals Board, and selected additional Court of Appeal decisions, originally designated as unpublished. Random panels comprised equally of retired judges, applicants’ attorneys, and defense attorneys^[1], determine whether a request to publish these cases should be made utilizing the criteria set forth in California Rules of Court, Rule 8.1105(c), thereby making them citable. The publication factors in the rule are whether a case:

1. Establishes a new rule of law;
2. Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;
3. Modifies, explains, or criticizes with reasons given, an existing rule of law;
4. Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;
5. Addresses or creates an apparent conflict in the law;
6. Involves a legal issue of continuing public interest;
7. Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law;
8. Invokes a previously overlooked rule of law, or reaffirms a principle of law  not applied in a recently reported decision; or
9. Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.

Creation of the committee stemmed from a number of concerns. Often appellate courts do not recognize the significance of a given opinion due to lack of familiarity with the workers’ compensation system. For example, the very first case considered by a predecessor committee to the current CLA subcommittee involved an employee with an open medical award who moved out of state and could not find a treating physician after doing so. In its initial uncertified and uncitable opinion, the court mentioned in passing,  “The issues before us are fleeting and of little lasting significance in a case that is now over 12 years old.” Virtually any experienced practitioner in the California workers’ compensation system recognizes that utilizing an award of future medical treatment while living out of state can be challenging, both to the employee and claims administrator. The Court granted a request to publish the opinion after being advised that the issues presented could affect literally thousands of workers’ compensation cases. See Adventist Health v. Workers’ Comp. Appeals Bd., (2012)211 Cal.App.4th 376, 77 Cal. Comp Cases 935.

In addition, the variety of administrative decisions currently reported (en banc, significant panel, noteworthy, and panel) present a confusing array of potentially precedential opinions that well-considered Court of Appeal decisions can help clarify. Finally, “creative” attorneys often attempted to bypass the prohibition against citing unpublished cases by doing so indirectly when a case addressed an issue of importance, sometimes resulting in judicial admonition or threat of sanctions. The work of the review committee should mitigate that temptation and improve the quality of workers’ compensation practice.

The Legislation Subcommittee

The Legislation subcommittee recently completed a multi-year review of Labor Code provisions pertaining to workers’ compensation law. Judges and attorneys representing all parties to the litigation process worked together to achieve non-partisan clean-up of multiple large-scale last-minute legislative enactments over the past several decades that often resulted in retention of conflicting and obsolete sections. In addition, many sections are gender specific or utilize titles and other terminology that are outmoded. The CLA Workers’ Compensation Executive committee recently submitted comprehensive proposed changes to remedy these issues and currently awaits action by the California legislature.

[1] Current retired judge panel members include the Honorable Susan Hamilton, David Hettick, George Mason, Richard Newman, Kenneth Peterson, and Joseph Samuel. Applicants’ and defense attorneys are comprised of current and former members of the workers’ compensation executive committee.