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I concur with the decision to grant reconsideration in both the Almaraz and Guzman cases and to allow supplemental briefing, including the solicitation of amicus curiae briefs. However, I would go further and, in accordance with the Appeals Board’s broad powers on reconsideration (see Lab. Code, § 133), I would stay the legal effect – including the binding precedential effect (see Cal. Code Regs., tit. 8, § 10341) – of our February 3, 2009 joint en banc decision, pending the issuance of our further joint en banc opinion.

We cannot now determine, with certainty, whether or not we will affirm, rescind, alter, or amend our February 3, 2009 decision. Therefore, I believe it would be best to place the parties to these cases – as well as parties in other cases that otherwise would be bound by our February 3, 2009 decision – back in the position they would have been before that decision. In my view, by failing to stay the legal effect of our February 3, 2009 decision, there could be a substantial adverse impact on the workers’ compensation system, if our further decision should happen to arrive at a different result than our February 3, 2009 decision. This is because, in the interim, medical-legal and other costs might be unnecessarily accrued, incurred or wasted. This would be inconsistent with SB 899, which was intended to reduce the costs of the workers’ compensation system. (See, e.g., Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1329 [72 Cal.Comp.Cases 565, 578] (SB 899 was adopted as “an urgency measure designed to alleviate a perceived crisis in skyrocketing workers’ compensation costs”).) Also, proceedings at the trial level might take place unnecessarily or have to be repeated, thereby possibly delaying the provision of permanent disability benefits. This would be inconsistent with the mandate of Article XIV, section 4, of the California Constitution to “accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance [sic] of any character.” /// /// ///

ALMARAZ, Mario & GUZMAN, Joyce


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