Charles Hart worked for Town Los Gatos as an engineering inspector.

On August 19, 2003, while inspecting a construction site, Hart slipped, fell onto a pile of rebar, and injured his lower back. Town accepted liability for the claim. Hart was off work for eight days – from August 20 until August 27, 2003 – and returned to work on full duty. Hart was off work again for 30 days in 2004 – from July 10 until August 8, 2004 – and returned to work on full duty. Hart continued to work for Town until he retired on December 11, 2009, at age 68.

The case went to trial before a WCJ in 2017. Since Hart’s date of injury and the last day for which TD benefits had been paid were both before January 1, 2005, the WCJ held that Hart’s PD was to be rated under the 1997 permanent disability rating schedule, which is not based on the Guides and relies on a different system to rate work related impairments.

Hart’s vocational rehabilitation expert opined that Hart was unable to obtain and sustainably retain competitive gainful employment and that he was not amenable to vocational rehabilitation services.

The WCJ found the injury caused 100 percent PD and awarded Hart total PD payments of $602 per week for life. Since he was injured after January 1, 2003 and was awarded 100 percent PD, the WCJ found that Hart was entitled to annual COLA’s on his total PD benefits, permanent and stationary in May 2011, his first COLA was due on January 1, 2012 and every January 1 thereafter.

The WCJ cited Duncan v. Workers’ Comp. Appeals Bd. (2009) 179 Cal.App.4th 1009 (Duncan) in support of his COLA award which was, overruled in by the California Supreme Court in Baker Workers’ Comp. Appeals Bd. (2011), 52 Cal.4th 434 at page 437. eight years before the WCJ made his award.

Town petitioned for reconsideration, and argued that the WCJ erred in ordering the COLA to start on January 1, 2012 and that the correct start date for the COLA was January 1, 2017 (the January 1st after Hart’s TD benefits ended and he became entitled to receive total PD benefits). Reconsideration of this issue was denied with the WCAB failing to discuss the effect of Baker overruling Duncan.

The Court of Appeal Reversed in the unpublished case of Town of Los Gatos v W.C.A.B.

The Court of Appeal ruled that the “WCAB’s decision regarding the start date for the section 4659 COLA’s was clearly erroneous.”  Based on the plain language of section 4659(c), the Supreme Court held that to “receive the benefit of a COLA on any given January 1, a worker who has sustained an industrial injury must meet two conditions.

First, he or she must have been injured ‘on or after January 1, 2003 . . . .’ ” (Baker, supra, 52 Cal.4th at p. 443, quoting § 4659(c).) Hart meets that condition since he was injured on August 19, 2003. Second, the injured worker “must ‘become entitled to receive a life pension or total permanent disability indemnity . . .’ ” (Baker, at p. 443.)

“Town argues that the WCAB erred by failing to follow binding Supreme Court precedent in Baker. We agree. Indeed, as noted, rather than cite Baker in his opinion on decision in 2020, the WCJ relied on Duncan, supra, 179 Cal.App.4th 1009, which was superseded by a grant of review in 2010 and overruled in Baker in 2011. Even after that error was briefed by Town in its petition for reconsideration, the WCJ (and the WCAB) continued to ignore Baker. “