Ellen Jones was employed as a lecturer by San Francisco State University (SFSU) from July 2005 to July 2006. During this period she injured her bilateral upper extremities and lower back. SFSU, retained legal counsel who, in turn, filed an application for adjudication of claim with the WCAB in May 2009. At the same time, SFSU noticed applicant’s deposition for July 2009. When this application was filed, applicant was unrepresented.
Applicant’s attorney claimed an attorney fee as a result of the University having filed an application against an unrepresented worker. In September 2012, the WCJ issued his Findings, Award, and Order, which included the determinations that the employer “may not utilize section 4062.3, subdivision (g) to defeat liability for attorney fees pursuant to section 4064.” The WCAB then granted the SFSU motion for reconsideration and removal, and amended this finding as follows before remanding for further proceedings: “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 labor code 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 pursuant to SB 863 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.” )
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 amended statute, that applicant was not entitled to attorney fees. As such, the WCJ declared moot all other previously-decided issues relating to attorney fees.
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 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.
The Court of Appeal reversed in the unpublished case of San Francisco State University v WCAB, Ellen Jones.
Whether the WCAB (or WCJ) made the proper decision in this regard hinges 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. “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.” Where the issue of applicant’s right to fees under section 4064 is “deferred” and the matter remanded to the 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.