Opinion
NOT TO BE PUBLISHED
PROCEEDINGS to review a decision of the Workers’ Compensation Appeals Board. Annulled., W.C.A.B. Nos. ADJ4402731, [VNO 0460581]
Fattorosi & Associates and Michael D. Kuznetsky for Petitioner.
Carmen A. Trutanich, City Attorney, Karl L. Moody, Acting Managing Attorney, and Evelyn R. Dozier, Deputy City Attorney, for Respondent City of Los Angeles.
MALLANO, P. J.
On December 29, 2008, the Rehabilitation Unit of the Department of Industrial Relations, Division of Workers’ Compensation, issued a determination finding an injured worker, Gwen Colleran, was entitled to vocational rehabilitation benefits and services. The determination was a final appealable order. Colleran’s employer, the City of Los Angeles (City), had 20 days from the date of the issuance of the Rehabilitation Unit’s determination to file an appeal. (Former Lab. Code, § 4645, subd. (d), repealed by Stats. 2003, ch. 635, § 14.3; all further statutory references are to the Labor Code; see Cal. Code Regs., tit. 8, § 10293, subd. (d).) The City did not appeal the determination of the Rehabilitation Unit. Later, when Colleran sought to enforce the determination of the Rehabilitation Unit, the City argued that because the authorizing statute for the benefits awarded, namely, former section 139.5, was repealed effective January 1, 2009 (Stats. 2004, ch. 34, § 5), the Workers’ Compensation Appeals Board (Board) had no jurisdiction to enforce the award. The Board agreed and held the December 29, 2008 determination of the Rehabilitation Unit was not an enforceable award.
We agree that if the City had filed an appeal there would be no jurisdiction to enforce the award after the effective date of the repeal of section 139.5 because the appeal would have been decided under the law in force when its decision is rendered. (Beverly Hilton Hotel v. Workers’ Comp. Appeals Bd. (2009)176 Cal.App.4th 1597, 1604 (Beverly Hilton).) But because the City did not appeal the determination, it became final as of the date it issued, and thus Colleran is entitled to the benefits and services awarded. (§ 5800; Myers v. Workmen’s Comp. App. Bd. (1969) 2 Cal.App.3d 621, 628 (Myers).) We therefore annul the Board’s decision and remand the case for further proceedings to enforce the award.
I
BACKGROUND
The facts are not in dispute. Colleran was injured on April 28, 1999, in the course of her employment with the City. On December 2, 2008, Colleran filed a request for vocational rehabilitation benefits and services at the Rehabilitation Unit. A determination of the Rehabilitation Unit dated December 29, 2008, found Colleran was entitled to vocational rehabilitation services pursuant to section 139.5 and the determination was a final appealable order. The order stated further, “Any aggrieved party must file an appeal with the Workers’ Compensation Appeals Board within twenty (20) days from the date of service of this determination.”
The administrative director of the Division of Workers’ Compensation established a vocational Rehabilitation Unit that reviewed vocational rehabilitation services and developed rules and regulations for procedures to facilitate the timeliness and quality of vocational rehabilitation services. (Former § 139.5, subd. (a)(1)–(6).)
The City did not file an appeal of the determination. On June 28, 2009, a trial de novo was held on enforcement of the award. The parties stipulated that the City’s claims examiner on the Colleran file would have testified he had not received or reviewed the December 29, 2008 determination of the Rehabilitation Unit until April 10, 2009. The City also stipulated that no appeal of the determination of the Rehabilitation Unit was filed after it was received on April 10, 2009. Based on this record, the Workers’ Compensation Judge (WCJ) found the determination of the Rehabilitation Unit final and enforceable because the City failed to avail itself of the right to appeal. The WCJ issued an order for the City to provide vocational rehabilitation services from the date of the demand.
The City filed a timely petition for reconsideration of the findings of the WCJ, arguing that Colleran’s rights to vocational rehabilitation were not vested before January 1, 2009, and thus the Board had no jurisdiction to enforce the award. The Board granted the petition for reconsideration and found the December 29, 2008 determination of the Rehabilitation Unit was not a “final enforceable Order” because Colleran’s right to vocational rehabilitation benefits and services “did not become vested” before January 1, 2009, and, accordingly, that Colleran was not entitled to vocational rehabilitation benefits.
II
DISCUSSION
The findings of the Board on questions of fact are conclusive and not subject to review if supported by substantial evidence. (Scheffield Medical Group, Inc. v. Workers’ Comp. Appeals Bd. (1999) 70 Cal.App.4th 868, 879–880.) But we review the Board’s decision and order after reconsideration as a matter of law.
The extent of review in this court is set forth in section 5952, which provides that we must determine, based on the entire record, whether the Board acted without or in excess of its powers; whether the order, decision, or award was procured by fraud, was unreasonable, or was not supported by substantial evidence; and, if findings of fact were made, whether such findings support the order, decision, or award under review.
Colleran contends that the Board acted without or in excess of its powers in holding the December 29, 2008 determination of the Rehabilitation Unit was not final and vested on December 29, 2008. Rather, she maintains because the City did not file an appeal, the determination became final and vested on the date it issued. Colleran also argues she was denied due process because her answer to the City’s petition for reconsideration was timely filed, but the Board stated in its opinion on reconsideration an answer to the petition had not been filed.
According to the Board, the City had 20 days after service of the December 29, 2008 determination of the Rehabilitation Unit to appeal the determination; without extending the period of time to appeal five days for service by mail, the time allowable to appeal would have run on January 20, 2009. The Board concluded that because the effective date of the repeal of section 139.5 was before the time expired for the period in which the City could have appealed the award, the award was not final and vested. The Board reasoned that if final relief had not been granted before the repeal became effective, it could not be granted later, even if a judgment had been entered. (Rio Linda Union School Dist. v. Workers’ Comp. Appeals Bd. (2005) 131 Cal.App.4th 517, 528.)
We conclude that because the City did not appeal the final appealable determination, it became final as of the date it issued, and thus Colleran is entitled to the benefits and services awarded. Accordingly, we do not address whether Colleran was denied due process because the Board had not considered her answer to the City’s petition for reconsideration.
A. The Workers’ Compensation Plan
Section 139.5 was enacted in 1965 in order to provide for vocational rehabilitation programs to restore injured workers to suitable gainful employment for maximum self-support after their industrial injury. (Webb v. Workers’ Comp. Appeals Bd. (1980) 28 Cal.3d 621, 629 (Webb).) Former section 139.5 authorized the administrative director of the Division of Workers’ Compensation to establish a vocational Rehabilitation Unit, which would develop rules and regulations to expedite and facilitate the identification, notification, and referral of injured workers to vocational rehabilitation services. All disputed matters regarding a provision of vocational rehabilitation services had to be submitted initially to the Rehabilitation Unit. (Former § 4645, subd. (a).)
As a result of legislation enacted in 2004, section 139.5 was to remain in effect only until January 1, 2009, unless extended by subsequent legislation (§ 139.5, subd. (l); see Stats. 2003, ch. 635, § 14.2; Stats. 2004, ch. 34, § 5). There was no such subsequent legislation.
B. The Effect of the Repeal of Section 139.5 on the Finality of the December 29, 2008 Determination of the Rehabilitation Unit
In its decision after reconsideration the Board relied primarily on two en banc opinions to conclude the WCJ erred when he found the December 29, 2008 determination of the Rehabilitation Unit was a final enforceable order. Those cases concluded that the repeal of section 139.5 terminated any right to vocational rehabilitation benefits or services pursuant to orders or awards that were not final before January 1, 2009. The Board found a repeal of section 139.5 without a saving clause terminated all pending actions where the repeal finds them.
En banc decisions of the Board are binding precedent on all appeals board panels and workers’ compensation judges. (§ 115; Cal. Code Regs., tit. 8, § 10341; Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 1424, fn. 6.)
In Weiner v. Ralphs Company (2009) 74 Cal.Comp.Cases 736 (Weiner I), the Rehabilitation Unit issued a determination in 2008 that the worker was entitled to vocational rehabilitation benefits. The employer, Ralphs Company, filed a timely appeal and requested a hearing on the matter at the local appeals board. The trial took place in November of 2008, and a decision issued January 13, 2009, finding the worker was entitled to vocational rehabilitation benefits. Ralphs Company sought reconsideration of the January 13, 2009 findings and award issued by the WCJ. The Board granted the petition for reconsideration and held the repeal of section 139.5 terminated any rights to vocational rehabilitation benefits or services pursuant to any orders or awards that were not final before January 1, 2009. That holding was affirmed in the Board’s opinion when the worker filed a petition for reconsideration of Weiner I. (Weiner v. Ralphs Company (2009) 74 Cal.Comp.Cases 958 (Weiner II).) In Weiner II, the Board found subject matter jurisdiction over nonvested vocational rehabilitation rights cannot be conferred by waiver, estoppel, stipulation, or consent. (Id. at p. 960.)
The Court of Appeal in Beverly Hilton, supra, 176 Cal.App.4th 1597, reiterated the holding in Weiner I. In Beverly Hilton, the worker made a demand for vocational rehabilitation benefits. The Rehabilitation Unit determined he was entitled to the benefits and services requested. The employer appealed the determination and a trial de novo was held on the matter. The WCJ upheld the Rehabilitation Unit’s determination and the Board upheld the WCJ’s decision. In November 2008, the employer filed a writ of review. The court, in 2009, held when a pending action rests solely on a statute, and when the right is not vested, repeal of the statute without a saving clause will terminate any pending actions. (Id. at p. 1604.) The Beverly Hilton court stated that “‘final relief’ necessary for a vested right occurs when the award is final and any appeals have been concluded by a final judgment.” (Id. at p. 1606.)
Weiner I and II and Beverly Hilton are distinguishable in that they addressed the question of the finality of an award where there is a timely appeal or a writ of review pending as of the effective date of the repeal. But here, the City never filed an appeal.
At oral argument the parties referred to the recent holding in Los Angeles County Fire Dept. v. Workers’ Comp. Appeals Bd. (2010) 184 Cal.App.4th 1287 (Norton). The court held the worker’s right to vocational rehabilitation maintenance allowance ended with the repeal of section 139.5 to the extent of the award that had not become final. Reconsideration was still pending when former section 139.5 was repealed. But the part of the award not included in the petition for reconsideration had become final before the repeal, and the court was without jurisdiction to change that part of the award. (Norton, at p. 1296.)
Norton is not dispositive because it did not consider, nor discuss, the issue in the instant case regarding the interim period between the final determination and the expiration of time to appeal. (Norton, supra, 184 Cal.App.4th 1287.)
C. The Determination of the Rehabilitation Unit was Final When No Appeal was Filed
Former section 4645, subdivision (d) provided: “Any determination or recommendation of the administrative director’s vocational rehabilitation unit or by the arbitrator shall be binding unless a petition is filed with the appeals board within 20 days after service of the determination or recommendation.” California Code of Regulations, title 8, section 10293, subdivision (d) provides: “A petition appealing a decision of the rehabilitation unit shall be filed within twenty (20) days from the date of the issuance of the rehabilitation unit decision.” The burden of proof is on the party disputing the finding of the Rehabilitation Unit. (Cal. Code Regs., tit. 8, § 10958.) The petition must set forth the reason for the appeal. (Herlick, Cal. Workers’ Compensation Law (29th ed. 2010) Jurisdiction of the WCAB, Appeals, § 16.13, p. 16-48.) Timely filing of an appeal with the local Board is jurisdictional. Failure to do so deprives the Board of the power to hear the appeal. (2 Hanna, Cal. Law of Employee Injuries & Workers’ Compensation (2d rev. ed. 2009) Award & Enforcement, § 35.72.)
The court in Lomeli v. Department of Corrections (2003) 108 Cal.App.4th 788 (Lomeli) examined the difference between finality for enforcement purposes and finality for purposes of appeal. The California Department of Corrections (CDC) appealed from a judgment granting a petition for a writ of mandate filed by Lomeli commanding CDC to comply with an administrative order from the State Personnel Board (SPB) to reinstate him to his former position as a correctional officer. The CDC argued Lomeli’s petition was premature because CDC had one year to seek judicial review of the SPB’s decision, the one year had not expired, and therefore the underlying action was not final for enforcement purposes. The CDC cited section 1049 of the Code of Civil Procedure for support, which provides: “An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.” The court decided the judgment did not involve a court action, but rather an administrative hearing, and concluded that Code of Civil Procedure section 1049 applied only to civil actions. (Lomeli, atp. 792.) Code of Civil Procedure section 22 defines “action” as “an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right....” Thus, the court held because Code of Civil Procedure section 1049 did not apply to the enforcement of an administrative decision arising from an administrative hearing, the proposition that a civil action is not final until an appeal has been concluded was inapplicable. (Lomeli, at p. 797.) The court determined the SPB’s decision ordering Lomeli reinstated became final when SPB adopted the administrative law judge’s decision. It became enforceable when the CDC refused to comply with the order, notwithstanding CDC’s assertion that it intended to file a writ of administrative mandate to reverse SPB’s decision. In making its decision, the court considered the legislative intent that state employees who are ordered reinstated should not be left without employment and backpay for years in the course of litigation. (Id. atp. 798.)
Colleran relies on Pressler v. Donald L. Bren Co. (1982) 32 Cal.3d 831, 834 (Pressler), which addressed the issue of whether a court may consider an untimely appeal from a decision in an administrative hearing. In Pressler, the Labor Commission awarded a worker compensation and the employer failed to appeal timely. An appeal from a decision of the Labor Commission provides for a trial de novo as opposed to a conventional appeal where the court is limited to a review of the proceeding below. (Id. at p. 835.) Nevertheless, the Pressler court found that the distinction was not dispositive, reasoning that the first step in the appeal is not merely procedural, as it confers jurisdiction in the appellate court and terminates jurisdiction in the lower court. (Ibid.) The court held the time for filing an appeal is mandatory and jurisdictional and late filing cannot be excused on grounds of mistake, inadvertence, or excusable neglect. (Id. at p. 837.) The court held further that because the appeal was late, the decision became final and immediately enforceable. (Ibid.)
Other Board panel decisions also illustrate the effect of a failure to appeal or filing an imperfect appeal. A failure to appeal timely a Rehabilitation Unit determination may result in a waiver of valid defenses that a party would otherwise have been able to raise.
A Board panel decision is a citable authority, especially as an indication of contemporaneous interpretation and application of workers’ compensation laws. (Griffith v. Workers’ Comp. Appeals Bd. (1989) 209 Cal.App.3d 1260, 1264, fn. 2.)
In County of Los Angeles v. Workers’ Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 1352 (Derramas), the Rehabilitation Unit issued a determination on September 22, 1999, that the worker was entitled to vocational rehabilitation services. No appeal was filed to this determination. The employer began to provide services. The Rehabilitation Unit issued another determination on February 17, 2000, terminating benefits and services and finding the worker was not likely to benefit because she insisted on a chiropractic training program and would consider no other options. The Rehabilitation Unit found her position was an unreasonable refusal to participate because her transferable skills would have allowed less costly training. The worker appealed the February 17, 2000 determination and also sought enforcement of the September 22, 1999 Rehabilitation Unit determination. The employer contended the September 22, 1999 determination was null and void because the worker did not timely request vocational rehabilitation services, and thus her claim was barred by statute of limitations. The issues were tried and the WCJ found the September 22, 1999 determination was valid because the employer did not timely object to the determination. The WCJ found the employer attempted to avoid enforcement of the order by collaterally attacking the order on jurisdiction grounds. (Id. at p. 1353.) The WCJ found that even if the worker’s request for services was untimely, the employer waived the statute of limitations defense because it was not asserted at the earliest opportunity in the action and failure to have raised the issue, through a timely appeal, precluded it from later challenges to a judgment on those grounds. (Id. at pp. 1353–1354.) The WCJ determined the requirement of a timely appeal has been strictly construed, thus failure to file an appeal deprived the Board of jurisdiction. (Id. at p. 1355.) The Board upheld the decision of the WCJ, and the writ of review to this court was denied.
In Marriott International v. Workers’ Comp. Appeals Bd. (1994) 59 Cal.Comp.Cases 1096, the worker sustained an injury to her back but the medical evidence concluded no work restrictions were warranted. The evaluating physician made a diagnosis of carpal tunnel syndrome and concluded, due to this condition, the worker was in need of vocational rehabilitation. But no claim had been filed for this condition, no other notice had been otherwise served alleging injury to the wrists, and there was no admission of a wrist injury by the employer. Nevertheless, the worker requested vocational rehabilitation services, and the Rehabilitation Unit, without reviewing the entire record, awarded benefits on May 13, 1993. The employer claimed it did not receive a copy of the Rehabilitation Unit’s determination, but acknowledged that it knew of the determination in July 1993. The case-in-chief was litigated on August 19, 1993, with the employer’s raising the issue that the wrist claim was not industrial. The WCJ awarded benefits for the back but found no industrial causation to the wrists. On October 13, 1993, the employer filed an appeal of the May 1993 determination, contending the Rehabilitation Unit lacked jurisdiction to issue the decision because it was based on the injury to the wrists and there was a finding of no industrial causation to that part of body. The WCJ noted the employer had not filed an appeal from the Rehabilitation Unit’s May 13, 1993 decision within 20 plus five days, and that the appeal was therefore untimely. The WCJ pointed out the employer was aware of the Rehabilitation Unit’s decision in July of 1993 but waited until October of 1993 to file an appeal. The Board denied the employer’s petition for reconsideration. (Marriott, at p. 1097.) The Board also noted that, when a decision is served on a party, “the time to petition for reconsideration begins to run no earlier than the date on which the decision was actually received [citation].” (Marriott, at p. 1098, citing Hartford Accident & Indem. Co. v. Workers’ Comp. Appeals Bd. (1978) 86 Cal.App.3d 1.)
In Bermite v. Workers’ Comp. Appeals Bd. (1988) 53 Cal.Comp.Cases 419, the Rehabilitation Unit issued a determination in April 1987, awarding vocational rehabilitation services. In September 1987, the Rehabilitation Unit issued a modified order regarding reimbursement for mileage and supplies. The employer filed an appeal of the September order and also contended the earlier order of April was procured by fraud and misrepresentation. The Board denied reconsideration, finding the employer’s failure to appeal timely from the original decision deprived the Board of jurisdiction over the original award. (Ibid., citing Laird v. Workers’ Comp. Appeals Bd. (1983) 147 Cal.App.3d 198 [employee was not entitled to relief from an adverse decision which would otherwise have been rescinded due to denial of due process because he did not file an appeal from the rehabilitation bureau’s decision and thus failed to exhaust administrative remedies].)
Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288 stands for the proposition that “a judgment is not ‘final’ as long as it remains subject to direct attack by appeal, by motion for a new trial, or motion to vacate the judgment.” (Id. at p. 303.) But the court proceeded to explain “finality on appeal is not the only meaning of the phrase ‘final judgment’” and noted that “it has long been recognized that ‘No hard-and-fast definition of “final” judgment applicable to all situations can be given, since its finality depends somewhat upon the purpose for which and the standpoint from which it is being considered, and it may be final for one purpose and not for another....’” (Id. at pp. 303–304.) The court also discussed the fundamental sense of finality in every judgment the moment it is rendered since to find otherwise it would not be a judgment, “no matter what it is denominated.” (Id. at p. 304.)
In the instant case, the December 29, 2008 determination of the Rehabilitation Unit indicated the determination was final. And “[a]ny aggrieved party must file an appeal with the Workers’ Compensation Appeals Board within twenty (20) days from the date of service of this determination.” (See ante, p. 3, italics added.) The determination was a judgment that resolved all issues except compliance, and the judgment was appealable by the aggrieved party. The Board lost jurisdiction to hear the merits of the award, when no appeal was filed. Thus, the only remaining jurisdiction was for enforcement of the award pursuant to section 5502, subdivision (b)(3). The City’s inaction relayed the message it would abide by the determination of the Rehabilitation Unit. And the City offered no excuse for its failure to appeal other than to assert in conclusory fashion the Board had no jurisdiction to hear the claim, given the repeal of section 139.5, so no appeal was required. We disagree.
Based on Lomeli, Pressler, and the cited Board decisions, we conclude that given the absence of an appeal, Colleran’s rights vested on December 29, 2008, the date of the determination of the Rehabilitation Unit. (Cf. § 5800 [interest accrues from the date an order issues]; Myers, supra, 2 Cal.App.3d at p. 628 [an award of compensation includes a right to interest from the date of making and filing the award and the running of such interest is not suspended by supplementary proceedings including reconsideration or judicial review].)
The City argues it had no avenue to appeal the determination of the Rehabilitation Unit because former section 4645, subdivision (d), which set forth a procedure to appeal, was also repealed as of January 1, 2009. But California Code of Regulations, title 8, section 10293, which also provides the procedure to appeal an order of the Rehabilitation Unit, has not been repealed. Additionally, there remains a mechanism to proceed to hearing on a determination of the Rehabilitation Unit through section 5502, subdivision (b)(3). Section 5502, subdivision (b)(3) allows a party to request a priority hearing on the employee’s entitlement to vocational rehabilitation services or the termination of an employer’s liability to provide these services. The court in Beverly Hilton, supra, 176 Cal.App.4th at page 1609, found section 5502, subdivision (b)(3) was not rendered useless by repeal of section 139.5 because it is still applicable to those cases in which a final order has been rendered in connection with efforts to enforce or terminate a final order of the Rehabilitation Unit.
California Code of Regulations, title 8, section 10293, subdivision (d) provides: “A petition appealing a decision of the rehabilitation unit shall be filed within twenty (20) days from the date of the issuance of the rehabilitation unit decision.”
An award of vocational rehabilitation services is intended to assist an injured worker in efforts to return to suitable gainful employment. Section 3202 provides for the liberal construction of divisions 4 and 5 of the Labor Code, although it is not applicable to division 1, where section 139.5 appeared. Nevertheless, the “‘underlying policy of [the workers’ compensation statutes and their constitutional foundation in California Constitution, article XX, section 21] as well as the recurrent theme of countless appellate decisions on the matter has been one of a pervasive and abiding solicitude for the workman.’ [Citation.]” (Webb, supra, 28 Cal.3d at p. 626.)
Accordingly, we hold that because the City did not appeal the final appealable determination of the Rehabilitation Unit, it became final and enforceable as of the date of the award. Thus, Colleran is entitled to the benefits and services awarded.
III
DISPOSITION
The Board’s October 28, 2009 decision is annulled, and the matter is remanded for further proceedings to enforce the award.
I concur: JOHNSON, J.
CHANEY, J., Dissenting.
I dissent.
It is well established that “an action wholly dependent on statute abates if the statute is repealed without a saving clause before the judgment is final.” (Younger v. Superior Court (1978) 21 Cal.3d 102, 109.) “[W]ithout a doubt, ‘final’ means after an appeal is concluded or the time within which to appeal has passed.” (McKee v. National Union Fire Ins. Co. (1993) 15 Cal.App.4th 282, 287.) A judgment is not final so long as it “remains subject to direct attack by appeal.” (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 303). It does not matter that the City did not file an appeal here, because Labor Code section 139.5 lapsed before it had to, and thus before the rehabilitation unit determination became final.
The rule that a judgment or order becomes final only after the time to file an appeal expires is universal. It exists in the criminal context (Bell v. Maryland (1964) 378 U.S. 226, 230 [The statutory repeal rule applies to any proceeding “which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it.”]; In re Morgan (2010) 50 Cal.4th 932, 939 [“A judgment of death is ‘final’... upon expiration of the time in which the inmate may seek certiorari in the federal high court.”]; People v. Rossi (1976) 18 Cal.3d 295, 304 [same]; People v. Quicke (1969) 71 Cal.2d 502, 509 [“By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted....”]; People v. Jackson (1967) 67 Cal.2d 96, 98. [judgment becomes final when appellant does not seek certiorari]; In re Spencer (1965) 63 Cal.2d 400, 405 [“finality” is “that point at which the courts can no longer provide a remedy to a defendant on direct review”]; In re Pine (1977) 66 Cal.App.3d 593, 595 [same]), the civil (Sullivan v. Delta Air Lines, Inc., supra, 15 Cal.4th at p. 303 [judgment not final so long as it “remains subject to direct attack by appeal”]; Harrier v. Bassford (1904) 145 Cal. 529, 531 [“six months in which an appeal may be taken” “must elapse before the judgment becomes final”; Hoover v. Galbraith (1972) 7 Cal.3d 519, 525-526 [“An action on a judgment, as distinguished from execution on a judgment, may not be commenced until the judgment has become final either upon expiration of the period within which an appeal may be taken, or, if an appeal is taken, upon the issuance of the remittitur when the judgment has been affirmed.”]; Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1018 [in the absence of an appeal, the underlying judgment becomes final when the period for filing an appeal expires]; McKee v. National Union Fire Ins. Co., supra, 15 Cal.App.4th at p. 287 [“without a doubt, ‘final’ means after an appeal is concluded or the time within which to appeal has passed”]; McGee v. Hoffman (1920) 46 Cal.App. 508, 511 [judgment becomes final after time for appeal expires]; Bates v. Ransome-Crummey Co. (1919) 42 Cal.App. 699, 704 [“When the defendant fails within sixty days after the entry of judgment either to appeal or to commence proceedings for a new trial, the judgment becomes final for all purposes at the expiration of the sixty-day period.”]), and the administrative (Pressler v. Donald L. Bren Co. (1982) 32 Cal.3d 831, 837: “If a notice of appeal is not timely filed, the Labor Commissioner’s decision becomes final....”]; People v. Sims (1982) 32 Cal.3d 468, 485-486 [for collateral estoppel purposes, an administrative decision becomes final when the deadline for seeking a rehearing passes], superseded on other grounds by statute, as stated in People v. Preston (1996) 43 Cal.App.4th 450, 450, 460]).
The rule exists in workers compensation cases. (Los Angeles County Fire Dept. v. Workers’ Comp. Appeals Bd. (2010) 184 Cal.App.4th 1287, 1296 [unappealed award “became” final on the last day to appeal]; Marsh v. Workers’ Comp. Appeals Bd. (2005) 130 Cal.App.4th 906, 916 [a workers’ compensation appeals board determination becomes final for purposes of the statutory repeal rule after the appellate process has been exhausted].)
The rule is described by statute (Code Civ. Proc. §§ 1049 [“An action is deemed to be pending from the time of its commencement until... the time for appeal has passed....”] and 1235.120 [“‘Final judgment’ means a judgment with respect to which all possibility of direct attack by way of appeal... has been exhausted.”]; Lab. Code, § 273 [“‘Final judgment issued by a court’ means a judgment with respect to which all possibility of a direct attack, by way of appeal... has been exhausted and also includes any final arbitration award where the time to file a petition for a trial de novo or a petition to vacate or correct the arbitration award has expired, and no petition is pending.”]) and by court rule (Cal Rules of Court, rules 3.545 [for purposes of transferring a coordinated proceeding back to the originating trial court after final judgment, “a judgment is final when it is no longer subject to appeal”] and 8.888 [a decision in the appellate division of the superior court becomes “final 30 days after the decision is filed.”]).
Today’s decision states a new rule: If a party does not appeal an order, the order becomes final “as of the date it issued.” No rationale is offered as to why such a rule is necessary or desirable, and no authority supports it. The rule is purportedly based on Lomeli v. Dept. of Corrections (2003) 108 Cal.App.4th 788, Pressler v. Donald L. Bren Co., supra, 32 Cal.3d 831, and several Board decisions. But Lomeli holds only that an administrative decision is enforceable during the pendency of any appeal. Clearly, an order on appeal is not final, even if it is enforceable. County of Los Angeles v. Workers’ Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 1352, 1355 (Derramas) and Bermite v. Workers’ Comp. Appeals Bd. (1988) 53 Cal.Comp.Cases 419 hold only that failure to file a timely appeal is jurisdictional. Similarly, Marriott International v. Workers’ Comp. Appeals Bd. (1994) 59 Cal.Comp.Cases 1096 holds only that untimely appeals cannot be heard. None of these cases stands for the proposition that if an order is not appealed, it becomes final as of the date it was issued. Pressler v. Donald L. Bren Co. actually implies the contrary, as it states an award “becomes” final if an appeal is not timely filed, and says nothing about backdating the time of finality. (32 Cal.3d at p. 837.)
Two cases on point hold that a rehabilitation unit award is not final during their pendency on appeal. (Beverly Hilton Hotel v. Workers’ Comp. Appeals Bd., supra, 176 Cal.App.4th at p. 1606; Weiner v. Ralphs Company (2009) 74 Cal.Comp.Cases 736.) The majority distinguishes these cases on the ground that in them, unlike here, Beverly Hilton and Weiner, the petitioners appealed Board orders. That makes no difference. It is universally recognized that a judgment or administrative order is not final so long as an appeal could be taken.
Today’s rule is one of hindsight. It not only contravenes well established authority and is unsupported by any rationale, it would require parties to wait for expiration of the time to appeal before learning the date of finality. But “the finality of a judgment can only be weighed in terms of the situation as it existed at the time the judgment is entered, rather than basing the determination on the occurrence of events after judgment which establish, by hindsight, that the judgment obtained did in fact give to the prevailing party all the relief it found necessary.” (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 12-13.)
Finally, today’s rule is unnecessary, as denial of rehabilitation benefits to Colleran worked no injustice. “The justification for the rule that a statutory right of action may be repealed is that all statutory remedies are pursued with full realization that the Legislature may abolish the right to recover at any time.” (Graczyk v. Workers’ Comp. Appeals Bd. (1986) 184 Cal.App.3d 997, 1007, fn. 5.) In 2004 the Legislature decided no vocational rehabilitation awards would be made after January 1, 2009. (Former Lab. Code, § 139.5, subd. (l), added by Stats. 2004, ch. 34, § 5.) Colleran not only knew her remedy could be abolished, she knew it would be, and on what day, four years in advance.
I agree the policy of the workers’ compensation statutes and their constitutional foundation is one of solicitude for the workman. But “[t]he California Constitution does not make a worker’s right to benefits absolute.” (Rio Linda Union School Dist. v. Workers’ Comp. Appeals Bd. (2005) 131 Cal.App.4th 517, 532.) Today’s decision delays the application of the Legislature’s repeal of Labor Code section 139.5, directly contrary to legislative intent.
I would therefore affirm.