In June we reported on the en banc Weiner decision in which the WCAB basically shut the door on all further vocational rehabilitation benefits if no order or award existed by January 1, 2009.
This new decision analyzes whether the Board should reconsider.
The short answer is that reconsideration was denied.
The longer answer is that the Board came to that conclusion by issuing a multi-page en banc "denial" which offers more legal analysis to its earlier decision (with the clear intent of buttressing its position for the almost certain appeal).
You will recall that the Board's original decision centered around the concept that, without an Award or Order in place by January 1, 2009, vocational rehabilitation rights had not "vested" and thus were barred by the statute ending the program on that date.
The reconsideration issues included the argument that - at least for this particular case - the applicant's vocational rehabilitation rights HAD vested prior to January 2009 because of the unique fact pattern involved (the applicant made a second request for voc. rehab in 2004 - which the employer never objected to and actually began fulfilling in March 2005).
However the Board noted that, despite the voluntary commencement of benefits, there had been no AWARD or ORDER for such benefits and, thus, no vesting.
We can therefore assume that on appeal the issue will be a dissection of the legal principle of "vesting" - when and how something goes from a mere expectation that can be taken away, to an inalienable right that can't.
Which means that anyone considering an appeal should be prepared to argue, not just the original decision by the Board, but this denial as well.
To read this latest reconsideration denial,
→
CLICK HERE.
To read our original article, and the original decision,
→
CLICK HERE.
