Filed 9/29/14 SFSU v. WCAB CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


SAN FRANCISCO STATE UNIVERSITY
et al.,
         Petitioners,
v.                                                                        A141793
WORKERS’ COMPENSATION APPEALS
BOARD and ELLEN JONES,                                                    WCAB Case No. ADJ7076922)
         Respondents.


         Petitioners San Francisco State University and Sedgwick Claims Management
Services (petitioners) seek a Writ of Review pursuant to Labor Code section 5950
ordering the Workers’ Compensation Appeals Board (WCAB) to vacate its April 4, 2014
decision that respondent Ellen Jones (applicant) is entitled to attorney fees pursuant to the
version of Labor Code section 4064, subdivision (c), in effect until January 1, 2013, when
an amended version of the statute took force.1 Petitioners seek a determination by this
court that the amended version of section 4064, subdivision (c), should apply to this case,
and operate to preclude applicant’s recovery of such fees. For reasons discussed below,
we grant petitioners’ requests for relief.

                            PROCEDURAL AND FACTUAL HISTORY
         Applicant was employed as a lecturer by petitioner San Francisco State University
(SFSU) from July 2005 to July 2006. During this period of employment, applicant

1
         Unless otherwise stated, all statutory citations herein are to the Labor Code.


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injured her bilateral upper extremities and lower back and was referred to a state-
appointed qualified medical examiner. SFSU, through its administrator, petitioner
Sedgwick Claims Management Services, retained legal counsel who, in turn, filed an
application for adjudication of claim with the WCAB in May 2009. At the same time,
petitioners noticed applicant’s deposition for July 2009. When this application was filed,
applicant was unrepresented.2
       In June 2012, after discovery, this matter was tried before Workers’ Compensation
Judge Stanley Shields (WCJ). In September 2012, the WCJ issued his Findings, Award,
and Order, which included the following factual determinations (with original
numbering):
1.     Applicant sustained injury arising out of and occurring in the course of her
employment to her low back and bilateral hands;
4.     Applicant has sustained permanent disability of nine percent after certain
applicable adjustments, with benefits payable in the total amount of $6,210.00;
6.     Applicant’s attorney is entitled to a fee pursuant to section 4064;
7.     Petitioners are entitled to costs pursuant to section 4062.3, subdivision (g)3;
8.     Petitioners may not utilize section 4062.3, subdivision (g) to defeat liability for
attorney fees pursuant to section 4064;



2
       Applicant had retained counsel by the time of her deposition.
3
       Section 4062.3, subdivision (g) provides: “Ex parte communication with an
agreed medical evaluator or a qualified medical evaluator selected from a panel is
prohibited. If a party communicates with the agreed medical evaluator or the qualified
medical evaluator in violation of subdivision (e), the aggrieved party may elect to
terminate the medical evaluation and seek a new evaluation from another qualified
medical evaluator to be selected according to Section 4062.1 or 4062.2, as applicable, or
proceed with the initial evaluation.” In this case, the WCJ found applicant, while acting
pro per, inadvertently engaged in ex parte communications with a qualified medical
examiner, thereby coming within the scope of section 4062.3, subdivision (g). The
WCJ’s findings in this regard, including its finding that petitioners are entitled to certain
costs under section 4062.3, subdivision (g), are not at issue in these writ proceedings and,
thus, will be discussed no further herein.


                                              2
9.     Legally and equitably, the costs pursuant to Finding No. 7 shall operate as an
offset against the fees awarded pursuant to Finding No. 6;
10.    The record is in need of further development in regard to the fee to be awarded
pursuant to section 4064 and costs to be awarded pursuant to Finding No. 7.
       Petitioners thereafter moved the WCAB for reconsideration or, in the alternative,
removal of the WCJ’s September 2012 Findings, Award, and Order, arguing, among
other things, that the WCJ erred in finding them liable for attorney fees.4 The WCAB, in
turn, issued an opinion on December 13, 2012, granting petitioners’ motion for
reconsideration and removal. Specifically, the WCAB stated it would “amend the WCJ’s
decision to defer the issue of whether [petitioners] may use [] section 4062.3(g) to defeat
[their] liability for attorney’s fees pursuant to [] section 4064 and to clarify that defense
counsel is not required to serve a complete itemization of her billing.” In doing so, the
WCAB expressly noted “the WCJ has not yet awarded an attorney’s fee under [] section
4064 or costs under [] section 4062.3, subdivision (g). . . . [T]o the extent [the motion]
requests that the calculation of the attorney’s fees or the costs occur in a certain way is
premature. [Petitioner] may make these arguments at the trial level. . . . In order to avoid
bifurcation, we will grant reconsideration and defer the issue of whether defendant may
use [] section 4062.3(g) to defeat its liability for attorney’s fees pursuant to [] section
4064. [Fn. omitted.] Although we agree with the WCJ’s analysis of this issue, for the
sake of judicial economy all issues related to attorney’s fees and costs should be
adjudicated at the same time.”
       Finally, in a footnote, the WCAB added: “Because the WCJ has not yet awarded
attorney fees or costs, Findings of Fact number 8 [that petitioners may not use section
4062.3, subdivision (g) to defeat liability under section 4064] is the sole finding related to

4
       Specifically, petitioners argued, among other things, that, because applicant
violated section 4062.3 by engaging in ex parte communications with a panel-qualified
medical examiner, they could not be held liable for fees under section 4604; that
requiring an employer to pay attorney fees in excess of that incurred by the employee is
prohibited; and that removal is necessary to develop the record with respect to attorney
fee itemization.


                                               3
fees or costs that may be interpreted as a final order subject to reconsideration.” The
WCAB then granted petitioners’ motion for reconsideration and removal, and affirmed
the WCJ’s September 2012 decision with the exception of Finding No. 8, which the
WCAB amended as follows before remanding for further proceedings:
“8. The issue of whether [petitioner] may utilize [] section 4062.3(g) to defeat its liability
for attorney fees pursuant to [] section 4064 is deferred with jurisdiction reserved at the
trial level.”
        At the time the WCAB issued this remand/removal order with respect to the
WCJ’s September 2012 Findings, Award and Order, the version of section 4064,
subdivision (c), in effect provided: “Subject to Section 4906, if an employer files an
application for adjudication and the employee is unrepresented at the time the application
is filed, the employer shall be liable for any attorney’s fees incurred by the employee in
connection with the application for adjudication.” However, effective January 1, 2013,
section 4064, subdivision (c) was amended to provide: “Subject to Section 4906, if an
employer files a declaration of readiness to proceed and the employee is unrepresented at
the time the declaration of readiness to proceed is filed, the employer shall be liable for
any attorney’s fees incurred by the employee in connection with the declaration of
readiness to proceed.” Thus, the triggering event for the unrepresented applicant’s right
to attorney fees changed from the employer’s filing of an application for adjudication of
claim to the employer’s filing of a declaration of readiness to proceed. (Here, applicant
filed this declaration of readiness to proceed.) In addition, when enacting these and other
amendments to the Labor Code, the Legislature made the express finding that: “This act
shall apply to all pending matters, regardless of date of injury, unless otherwise specified
in this act, but shall not be a basis to rescind, alter, amend, or reopen any final award of
workers’ compensation benefits.” (Stats. 2012, ch. 363, § 84, p. 3799.)
        In July 2013, following the effective date of the amended version of section 4064,
subdivision (c), the WCJ conducted further proceedings on remand from the WCAB’s
December 13, 2012 decision. The WCJ thereafter issued Findings of Fact and an
Opinion on Decision, dated October 16, 2013, in which it determined, based upon the


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amended statute, that applicant was not entitled to attorney fees.5 As such, the WCJ
declared moot all other previously-decided issues relating to attorney fees.
       In reaching this decision, the WCJ expressed confusion with respect to the
WCAB’s December 2012 order and, in particular, whether it amounted to a final decision
with regard to applicant’s right to recover attorney fees pursuant to section 4064,
subdivision (c). While the WCAB stated in footnote one of its order that, “[b]ecause the
WCJ has not yet awarded attorney fees or costs, Findings of Fact number 8 is the sole
finding related to fees or costs that may be interpreted as a final order subject to
reconsideration”, the WCAB then proceeded in seemingly contradictory fashion to
“affirm” the WCJ’s Findings Nos. 6, 7 and 9. Finding No. 6, in turn, provided that
“Applicant’s attorney is entitled to a fee pursuant to [] Section 4064.”
       Nonetheless, despite this apparent inconsistency, the WCJ ultimately decided that,
because no party had sought reconsideration of the WCAB’s order, it had become final
and binding, including the part of such order deferring “all issues related to attorney’s
fees and costs [to] be adjudicated at the same time.” As such, the WCJ took it upon itself
to reconsider the issue of applicant’s entitlement to attorney fees under the newly enacted
version of section 4064, subdivision (c), in light of the legislative directive that this
version “shall apply to all pending matters.” And, after having done so, the WCJ
determined she had no such right.
       This time, applicant sought reconsideration by the WCAB of the WCJ’s October
2013 findings and opinion on attorney fees. The WCAB, in an order dated January 14,
2014, granted her request for reconsideration and set aside the WCJ’s denial of fees under
the newly revised statute, explaining:
“We did not intend to state [in footnote one of the December 13, 2012 opinion and
decision] that Finding of Fact number 6 [awarding applicant attorney fees under section


5
       Applicant was unrepresented when petitioners filed the application for
adjudication, the triggering event under the prior version of the statute. However,
applicant was not entitled to attorney fees under the new version of the statute because
she, not petitioners, filed the declaration of readiness to proceed.


                                               5
4064] was not a final decision subject to reconsideration, although we recognize that the
footnote could be interpreted that way. In any event, a footnote in an Opinion on
Decision does not change the effect of our affirmation [of] Finding of Fact number 6.
Finding of Fact number 6 is a final decision.” The WCAB thus concluded based on this
reasoning that “the amendment of the Labor Code section 4064 does not affect
applicant’s attorney’s fee request in this case,” and remanded the matter to the WCJ for
calculation of the amount of fees to which applicant was entitled.
       Petitioners sought reconsideration of the WCAB’s January 2014 order, arguing, as
they do here, that the attorney fee issue was still pending when the WCJ reconsidered the
issue on remand in October 2013. As such, they reasoned, the WCJ was correct to apply
the version of section 4064, subdivision (c) that became effective on January 1, 2013, and
the WCAB, in turn, lacked jurisdiction to alter or amend the WCJ’s ruling. On April 7,
2014, however, the WCAB rejected petitioners’ challenge and affirmed its previous order
awarding applicant attorney fees pursuant to the prior version of section 4064,
subdivision (c). In doing so, the WCAB reiterated that the fee award in this case had
become “final” prior to the January 1, 2013 effective date of the amended version of the
statute, when the WCAB issued its December 13, 2012 decision to affirm the WCJ’s
Finding of Fact No. 6.
       In response, petitioners filed the petition for writ of review now before us. In
doing so, petitioners ask this court for a determination as a matter of law that the
amended version of section 4064, subdivision (c), governs this case because, when the
amendment became effective on January 1, 2013, the matter of applicant’s right to
attorney fees was still pending. Accordingly, petitioners argue, the WCAB acted in
excess of its jurisdiction by applying the previous version of the statute. For reasons
discussed below, we agree and grant their requests.
                                       DISCUSSION
       The sole issue before us is whether the WCAB acted in excess of jurisdiction or
otherwise erred in failing to apply the amended version of section 4064, subdivision (c),
effective January 1, 2013, to the parties’ dispute over applicant’s right to attorney fees.


                                              6
The relevant statutory provisions – to wit, the pre- and post-amendment versions of
section 4064, subdivision (c) – are set forth above. (Page 4, ante.) As the statutory
language reflects, there is a key difference in the old and new versions of this statute that,
in this case, happens to be determinative on the issue of applicant’s right to recover the
attorney fees. To summarize, before section 4064, subdivision (c), was amended, the
event that triggered an unrepresented applicant’s right to recover the statutory fees was
the employer’s filing of the application for adjudication; after the amendment, the
relevant event became the employer’s filing of a declaration of readiness to proceed.
This amendment became effective January 1, 2013, and, according to a legislative note
from the 2012 Regular Session, “shall apply to all pending matters, regardless of date of
injury, unless otherwise specified in this act, but shall not be a basis to rescind, alter,
amend, or reopen any final award of workers’ compensation benefits.” (Stats. 2012,
ch. 363, § 84, p. 3799 [italics added].)
       In this case, as explained above, when the WCJ first issued a finding on
September 28, 2012 that applicant was entitled to recover attorney fees pursuant to
section 4064, subdivision (c), the pre-amendment version of the statute was in effect.
However, by the time the WCJ was called upon on remand from the WCAB to consider
the attorney fee issue again on October 16, 2013, the statutory amendment was in effect.
As such, applying the new version of the statute, the WCJ made the contrary finding that
applicant was not entitled to recover attorney fees.6 The WCAB thereafter found this to
be an erroneous decision, and reversed it. Whether the WCAB (or WCJ) made the proper
decision in this regard hinges, as all parties recognize, on whether there was “any final
award” of workers’ compensation benefits, which includes the benefit of attorney fees,
when the amended statute took effect on January 1, 2013. (Stats. 2012, ch. 363, § 84,
p. 3799.)



6
       The factual findings regarding applicant’s eligibility to recover attorney fees
pursuant to the previous and current versions of section 4064, subdivision (c), are not in
dispute.


                                               7
       Having considered this legal issue de novo, as the law requires (Barnes v.
Workers’ Comp. Appeals Bd. (2000) 23 Cal.4th 679, 685), we agree with petitioners the
amended version of section 4064, subdivision (c), not the previous version applied by the
WCAB, governs this case. Simply put, there was no “final award” of attorney fees as of
January 1, 2013, when the amendment took force. What we had in place was the
WCAB’s December 13, 2012, order granting petitioners’ motion for reconsideration and
removal, which expressly states that “the WCJ has not yet awarded attorney’s fees under
[] section 4064 or costs under [] section 4062.3[, subdivision (g)].” By this order, the
WCAB then “amend[ed] the WCJ’s decision to defer the issue of whether [petitioners]
may use [] section 4062.3(g) to defeat [their] liability for attorney’s fees pursuant to []
section 4064 and to clarify that defense counsel is not required to serve a complete
itemization of her billing.” In doing so, the WCAB emphasized its intent to “avoid
bifurcation” by granting reconsideration and “defer[ing] the issue of whether defendant
may use [] section 4062.3(g) to defeat its liability for attorney’s fees pursuant to []
section 4064. [Fn. omitted.] Although we agree with the WCJ’s analysis of the issue, for
the sake of judicial economy all issues related to attorney’s fees and costs should be
adjudicated at the same time.” (Italics added.)
       Much has been made of the footnote to the WCAB’s order stating: “Because the
WCJ has not yet awarded attorney fees or costs, Findings of Fact number 8 is the sole
finding related to fees or costs that may be interpreted as a final order subject to
reconsideration.” As the WCJ lamented, this footnote appears to run counter to the
WCAB’s subsequent affirmance of several of its Findings of Fact, including No. 6, by
which it found applicant entitled to attorney fees under the previous version of section
4064, subdivision (c). We, however, find no need to dwell on this apparent
inconsistency, given the clarity of the WCAB’s ultimate order that “The issue of whether
[petitioner] may utilize [] section 4062.3(g) to defeat its liability for attorney’s fees
pursuant to [] section 4064 is deferred with jurisdiction reserved at the trial level.” This
statement, read in context, provides the answer to our inquiry. Where the issue of
applicant’s right to fees under section 4064 is “deferred” and the matter remanded to the


                                               8
WCJ – after the WCAB twice recognized in its opinion that the WCJ had “not yet
awarded” such fees – we can conceive of no basis in law or reason for concluding that a
“final award” of fees had already been, or was being, made. As explained in applicant’s
own authority in opposing this petition, “a final order, decision, or award, in the
commonly accepted sense is one which determines any substantive right or liability of
those involved in the case.” (Kaiser Foundation Hospitals v. Workers’ Compensation
Appeals Board (1978) 82 Cal.App.3d 39, 45.) Where an appeals board has deferred
consideration of whether the applicant has a right to fees pursuant to section 4064,
subdivision (c) or, alternatively, whether the employer may defeat liability for such fees
pursuant to section 4062.3, subdivision (g), we are at a loss as to how the conclusion
could be drawn that such right or liability has been “determine[d].” (See Kaiser
Foundation Hospitals v. Workers’ Compensation Appeals Board, supra, at p. 45.)
       As such, the Legislature directs us to apply the amended version of section 4064,
subdivision (c), which version, in turn, provides applicant no right to the attorney fees (a
fact she does not contest). (Stats. 2012, ch. 363, § 84, p. 3799.) No further analysis is
required. Petitioners’ petition for writ of review and requests for relief must be granted.

                                      DISPOSITION
       We grant petitioners’ request for writ of review and vacate the WCAB’s Opinion
and Order Denying Petition for Reconsideration, dated April 4, 2014. We remand the
matter to the WCAB for such further proceedings as may be consistent with this opinion.

                                                  _________________________
                                                  Jenkins, J.

We concur:

_________________________
McGuiness, p. J.

_________________________
Siggins, J.




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