ADJ11866446 — California WCAB decision

What the panel ordered

January 27, 2020 Findings of Fact and Order rescinded; matter returned to trial level for further proceedings.

Petition for reconsideration filed by applicant after WCJ denied second RTWSP benefit; WCAB granted reconsideration and issued decision after reconsideration.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Other disputed issueRemanded

The WCAB found no record finding of the date of injury for the cumulative trauma claim, which is necessary to determine if the second RTWSP payment was proper under Rule 17302(b). The matter was returned to the trial level for this finding.

From the decision · page 5Rule 17302(b) provides that, "An individual who has received a Return-to-Work Supplement may not receive a second or subsequent Return-to Work-Supplement, except where the individual receives a Voucher for an injury which occurs subsequent to receipt of every previous Return to Work Supplement." (Cal. Code Regs., tit. 8, § 17302.) The question is whether the date of injury of the March 15, 2004 through April 2, 2014 cumulative trauma injury is subsequent to the August 23, 2019 RTWSP payment. "The date of injury in cases of occupational disease or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment." (§ 5412.) The determination of a section 5412 "date of injury" is a two-part analysis, i.e., when did the employee first suffer a compensability disability from a CT injury, and when did the employee know, or in the exercise of reasonable diligence should have known, that the compensable disability was caused by his or her employment. (See State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998 [69 Cal.Comp.Cases 579].) The record contains no finding as to date of injury of the cumulative trauma.4 We are, therefore, unable to determine whether the date of injury

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The Appeals Board has jurisdiction to review the petition for reconsideration despite RTWSP's contention that review is limited to the trial level, preserving constitutional due process rights.

Favours Applicant prevailed

This fact supports the applicant's ability to seek review beyond the trial level, leading to the rescission of the prior order.

From the decision · page 4We note that section 139.48 and Rule 17309 do not prohibit appeals to the Appeals Board. RTWSP's argument that an appeal stops at the trial level of the WCAB would not only prevent a person from seeking review from the Appeals Board but also from the Court of Appeal and the Supreme Court. Section 5900 specifically provides that any person may seek reconsideration from the Appeals Board of a WCJ's final order, decision, or award. (§ 5900.) Section 5950 provides that any person may seek a writ of review from the Court of Appeal or the Supreme Court of an order, decision, or award of the Appeals Board. (§ 5950.) In contrast, section 139.48(b) and Rule 17309 are silent as to any remedy after the trial level of the WCAB. Prohibiting review from the Appeals Board will also prohibit review from the Court of Appeal and Supreme Court, which violates the constitutional right to due process. We do not believe that the language in section 139.48 and Rule 17309 create such a draconian limitation. Accordingly, we determine here that applicant's petition for reconsideration of the WCJ's denial of a second RTWSP payment is properly before us.

No finding was made on the date of injury for the cumulative trauma claim, which is necessary to determine eligibility for a second RTWSP payment under Rule 17302(b).

Favours Applicant prevailed

Without this finding, the WCAB could not determine if the second payment was proper, necessitating remand for further proceedings.

From the decision · page 5Rule 17302(b) provides that, "An individual who has received a Return-to-Work Supplement may not receive a second or subsequent Return-to Work-Supplement, except where the individual receives a Voucher for an injury which occurs subsequent to receipt of every previous Return to Work Supplement." (Cal. Code Regs., tit. 8, § 17302.) The question is whether the date of injury of the March 15, 2004 through April 2, 2014 cumulative trauma injury is subsequent to the August 23, 2019 RTWSP payment. "The date of injury in cases of occupational disease or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment." (§ 5412.) The determination of a section 5412 "date of injury" is a two-part analysis, i.e., when did the employee first suffer a compensability disability from a CT injury, and when did the employee know, or in the exercise of reasonable diligence should have known, that the compensable disability was caused by his or her employment. (See State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998 [69 Cal.Comp.Cases 579].) The record contains no finding as to date of injury of the cumulative trauma.4 We are, therefore, unable to determine whether the date of injury

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 139.48

Section 139.48 provides for a return-to-work program administered by the director with eligibility and payment regulations subject to review at the trial level of the WCAB.

The WCAB reviewed the statutory framework governing RTWSP eligibility and appeals.

Cal. Code Regs., tit. 8, 17302(b)

Rule 17302(b) prohibits receiving a second RTWSP payment unless the injury date is subsequent to prior payments.

The WCAB considered the validity and application of Rule 17302(b) in this case.

From the decision · page 3(b) An individual who has received a Return-to-Work Supplement may not receive a second or subsequent Return-to Work-Supplement, except where the individual receives a Voucher for an injury which occurs subsequent to receipt of every previous Return to Work Supplement. (Cal. Code Regs., tit. 8, § 17302.)

Cal. Code Regs., tit. 8, 17309

Rule 17309 outlines the appeal process for RTWSP decisions to the WCAB.

The WCAB analyzed the appeal rights under Rule 17309 in determining jurisdiction.

From the decision · page 3Rule 17309 An individual dissatisfied with any final decision of the Director on his or her application for the Return-to-Work Supplement may, file an appeal at the Workers' Compensation Appeals Board (WCAB) District Office. The appeal must contain the name of the individual, the ADJ number of the case in which a voucher was provided, and a clear and concise statement of the facts constituting the basis for the appeal. A copy of the appeal shall be served on the Return-to- Work Program located at 1515 Clay Street, 17th Floor, Oakland, California, 94612. Any appeal must be filed with the WCAB within 20 days of the service of the decision. After an appeal has been timely filed, the Return-to-Work Program may, within the period of fifteen (15) days following the date of filing of that appeal, amend or modify the decision or rescind the decision and take further action. Further action shall be initiated within 30 days from the order of rescission. The time for filing an appeal will run from the filing date of the new, amended or modified decision. Any such appeal will be subject to review at the trial level of the WCAB upon the same grounds as prescribed for petitions for reconsideration. (Cal. Code Regs., tit. 8, § 17309.)

Government Code section 11340 et seq.

The Administrative Procedures Act allows judicial review of regulations by superior court action for declaratory relief.

The WCAB noted that Rule 17302(b) is subject to judicial review under the APA.

From the decision · page 5RTWSP payments is governed by the Administrative Procedures Act (APA) found in Government Code, section 11340 et seq. Government Code, section 11350 provides that, "Any interested person may obtain a judicial declaration as to the validity of any regulation or order of repeal by bringing an action for declaratory relief in the superior court in accordance with the Code of Civil Procedure." In Dennis v. State of California (2020) 85 Cal.Comp.Cases 389, 403 [2020 Cal. Wrk. Comp. LEXIS 19] (Appeals Board en banc), we invalidated Rule 10133.54, a regulation promulgated by the Administrative Director of the Division of Workers' Compensation. Rule 10133.54, unlike Rule 17302(b), was not governed by the APA. (Gov. Code, § 11351(c) [Judicial review as to the validity of a regulation in the Superior Court "shall not apply to the Division of Workers' Compensation."].) Here, Rule 17302(b) is subject to judicial review in the Superior Court.

ADJ11866446 · May 27, 2025

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

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