Banc Dwg

[Tancredo Dori]

Thisreport is provided for case identification and background information only and does not reflect the views of the court. When a case is heard or reheard en banc, the en banc court assumes jurisdiction over the entire case, see 28 U.S.C. 46(c), regardless of the issue or issues that may have caused any member of the Court to vote to hear the case en banc. Summerlin v. Stewart, 309 F.3d 1193 (9th Cir. 2002).

Subject Matter: Appeal by relators Marcia Stein and Rodolfo Bone from the district court's dismissal of their False Claims Act (FCA) suit as barred by that statute's first-to-file rule.

Status: In light of letter from ZoomInfo providing notice of Memorandum of Understanding between the parties that would resolve the dispute, on March 1, 2024, the court issued an order vacating oral argument and directing the parties to file a status report within 60 days. On April 30, 2024, the panel issued an order directing the parties to file another status report within 90 days.

Subject Matter: Appeal from criminal sentence in a case in which the defendant contended that the government failed to meaningfully abide by its promise in the plea agreement not to recommend a sentence in excess of the low-end of the guidelines range.

Holding: The en banc court affirmed a sentence in a case in which the defendant argued that the government breached its promise under the plea agreement not to recommend a sentence in excess of the low-end of the sentencing guidelines range when the government implicitly urged the district court to impose a harsher sentence.

Holding: The en banc court vacated Lucas's sentence, and remanded, holding that clear and convincing evidence is not required for factual findings under the advisory Sentencing Guidelines, even when potentially large enhancements are at stake; fact finding by a preponderance of the evidence is sufficient to satisfy due process at sentencing.

Subject Matter: Appeal from a criminal judgment in a case in which Cynthia Leon Montoya, who pleaded guilty to importing cocaine and methamphetamine, entered a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(B).

To view decisions, click on the name of the decision (to the left of the date) and you will access the file which contains the decision. Use of the California Compensation Cases citation is used for the community's information and convenience only with a recognition that the text and/or summary of the decisions may also appear in other publications.

In the en banc notice of intent, the Appeals Board makes clear that an order setting a matter for trial is not a final order as it does not resolve any threshold issue. Where a party files a petition for reconsideration without good cause, a notice of intent to impose sanctions may issue.

The Appeals Board issued the en banc notice of intent where it appeared that Susan Garrett and Lance Garrett filed petitions for reconsideration solely intended to delay a trial from proceeding. It appeared that they filed petitions for reconsideration on the day of trial and that every issue raised on reconsideration was an issue to be decided at trial. Accordingly, a notice of intent to impose sanctions issued.

On June 10, 2024, the Appeals Board issued a combined en banc decision and panel decision. The decision is en banc as to Sections I, II, and IV, clarifying the known methods of rebutting the Combined Values Chart (CVC), holding that:

The Combined Values Chart (CVC) in the Permanent Disability Ratings Schedule (PDRS) may be rebutted and impairments may be added where an applicant establishes the impact of each impairment on the activities of daily living (ADLs) and that either:

(a) there is no overlap between the effects on ADLs as between the body parts rated; or

(b) there is overlap, but the overlap increases or amplifies the impact on the overlapping ADLs.

In the en banc notice of intent, the Appeals Board makes clear that a request for a continuance is not a final order as it does not resolve any threshold issue. Where a party files a petition for reconsideration without good cause, a notice of intent to impose sanctions may issue.

Due to the state of emergency in response to the novel coronavirus (COVID-19), the Appeals Board is temporarily suspending WCAB Rule 10789(c) (walk-through assignment hours). The presiding WCJs have the authority to prioritize which documents may be submitted as a walk-through from amongst the documents listed in WCAB Rule 10789(a) to expedite resolution of claims and to account for limited capacity in their respective district offices.

Pursuant to Governor Gavin Newsom's March 4, 2020 state of emergency in response to the novel coronavirus (COVID-19) and WCAB Rule 10370, the Appeals Board is temporarily suspending specific WCAB Rules of Practice and Procedure contained in Title 8 of the California Code of Regulations. This includes Rules regarding dismissals for failure to appear, the timeframe for reports from WCJs and arbitrators, required signatures and witnesses for Compromise and Release agreements, and service by the WCAB by mail and consent for electronic service. All filing deadlines are extended per the DWC's March 16, 2020 Newsline that all district offices are closed for filing from March 17 through April 3.

On January 13, 2020, the Appeals Board issued an en banc notice of intention to submit a decision holding that: (1) Administrative Director Rule 10133.54 is invalid because it exceeds the statutory authority granted to the Administrative Director under Labor Code sections 4658.5, subdivision (c), and 4658.7, subdivision (h), and restricts the exclusive adjudicatory power of the WCAB to adjudicate compensation claims, including disputes over supplemental job displacement benefits; and (2) an employer must show that it made a bona fide offer of regular, modified, or alternative work in order to avoid liability for a supplemental job displacement benefit voucher.

On September 14, 2017, numerous lien claimants by and through their sole representative Maximum Medical filed over 1,200 nearly identical Petitions for Reconsideration, challenging an administrative action in EAMS by DWC which prevented them from filing in their cases because they had allegedly failed to timely file declarations required by Labor Code section 4903.05(c). Thereafter, DWC removed the notation as to dismissal. Accordingly, lien claimants are not aggrieved (Lab. Code, 5900, 5903) and their Petitions for Reconsideration are moot and must be dismissed. In order to efficiently manage the pending Petitions, the Appeals Board consolidated the cases for the limited purpose of dismissing the Petitions for Reconsideration and designating Maximum Medical to serve the decision. This en banc decision shall apply to any case in which a Labor Code section 4903.05(c) Declaration was filed by a lien claimant after the close of business at 5:00 p.m. on Friday, June 30, 2017 through the close of business at 5:00 p.m. on Monday, July 3, 2017, whether or not the case number is identified in the decision.

We acknowledge that the issue of whether a lien claimant timely filed its declarations may be raised by a party and proceed to a hearing, but we emphasize that in the absence of an adjudication that a declaration was untimely, a lien claimant is not barred from proceeding on its lien. Additionally, as is noted above, whether declarations filed after the close of business at 5:00 p.m. on Friday, June 30, 2017 through the close of business at 5:00 p.m. on Monday July 3, 2017 were timely filed is not presently at issue, and we make no determination as to the timeliness of filing of such declarations. Once such a determination has been made, any aggrieved person may seek review of such determination. (Lab. Code, 5900, 5903.)

Following its issuance of a notice of intention to which there was no response by Javier Jimenez, the appeals board issued an order suspending for 180 days the privilege of Mr. Jimenez of appearing as a representative in any proceeding, due to his repeated misconduct and failure to comply with several orders of sanctions, costs and attorney fees, with such suspension continuing if Mr. Jimenez fails to comply with the orders within the 180 day period.

Following its issuance of a notice of intention to which there was no response by Mike Traw, the appeals board issued an order suspending for 90 days the privilege of Mr. Traw of appearing as a representative in any proceeding for his failure to comply with a sanction order, with such suspension continuing if Mr. Traw fails to comply with the sanction order within the 90 day period.

Whereas Section 22451(b) of the Business and Professions Code exempts a state bar member and his or her employees, agents or independent contractors from the registration and bonding requirements for professional photocopiers contained in sections 22450 and 22455 of this code, the Appeals Board held that these registration and bonding requirements do not apply to a lien claimant seeking to recover copy service fees as medical-legal expenses under Labor Code section 4620(a), when the lien claimant makes an unrebutted prima facie showing that it is an agent and/or independent contractor of a state bar member at the time the documents are photocopied.

Where Labor Code section 4610.6(h) provides that a verified appeal from an independent medical review (IMR) determination must be "filed with the appeals board within 30 days of the date of mailing of the determination to the aggrieved employee or the aggrieved employer," the Appeals Board held: (1) the term "mailing" is equivalent to and means "service by mail," and (2) the 30-day period to file a timely appeal from an IMR determination is extended by five (5) days pursuant to the provisions of Labor Code section 5316 and Code of Civil Procedure section 1013(a).

The Appeals Board granted State Compensation Insurance Fund?s petition for reconsideration of the February 27, 2014 Opinion and Decision After Reconsideration (En Banc) wherein the Appeals Board previously held that the Workers? Compensation Appeals Board may determine if a utilization review decision suffered from material defects that undermine the integrity of the decision, and if so, it may then determine the medical necessity issue based on substantial medical evidence. (See Dubon vs. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 313 (Appeals Board en banc) (Dubon).) Reconsideration was granted in order to allow sufficient opportunity to further study the factual and legal issues, noting that the prior decision remains in effect and binding pending a decision after reconsideration in the present matter.

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