Safeway Stores, Inc. v. Workers' Compensation Appeals Board

ELKINGTON, Acting P. J.

I dissent.

As noted in the majority opinion, we review a tentative ruling of the Board, concluding that the worker’s injury and disability were employment related and remanding the matter to the workers’ compensation judge for consideration of other issues. As I view the case and as in Gumilla v. Industrial Acc. Com. (1921) 187 Cal. 638, 640 [203 P. 397]: “Final action thereon has not yet been taken. Under these circumstances, the application for a writ of review of the order. . .is premature.”

Labor Code section 5950 permits our review of “an order, decision, or award” of the Board. Although the statute does not expressly say that the “order, decision, or award” must for such a review be “final,” that requirement will reasonably be implied. And Gumilla supplies the omitted concept by holding—“A writ of certiorari does not lie to review an order [of the Board] made in a matter prior to the final adjudication thereof.” (Latter italics added; 187 Cal., p. 639.)

*539Our review of an “order, decision, or award” of the Board is substantially, if not precisely, subject to the rule which will govern the customary appeal from a judgment. The rule is tersely stated by Kerley v. Workmen’s Comp. App. Bd. (1971) 4 Cal.3d 223, 226 [93 Cal.Rptr. 192, 481 P.2d 200]: “[Ojur review is confined to the question of whether, under applicable principles of law, the award [or judgment] .. .is supported by substantial evidence.” (Italics added.) It seems a fair statement of our ordinary appellate function.

Appellate courts of this state and of other jurisdictions have long clung to the “one judgment rule,” in determining a decision’s review-ability. “The reason for the one judgment rule is that ‘piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and... a review of intermediate rulings should await the final disposition of the case.’” (Knodel v. Knodel (1975) 14 Cal.3d 752, 760 [122 Cal.Rptr. 521, 537 P.2d 353]; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 36, pp. 4050-4051; and see Horton v. Jones (1972) 26 Cal.App.3d 952, 956-957 [103 Cal.Rptr. 399]; Caruso v. Snap-Tite, Inc. (1969) 275 Cal.App.2d 211, 214 [79 Cal.Rptr. 642]; Maier Brewing Co. v. Pacific Nat. Fire Ins. Co. (1961) 194 Cal.App.2d 494, 497-498 [15 Cal.Rptr. 177]; Efron v. Kalmanovitz (1960) 185 Cal.App.2d 149, 154 [8 Cal.Rptr. 107]; Murphy v. Fong Shuck (1957) 151 Cal.App.2d 64, 65 [311 P.2d 80].)

The rule is “‘“a fundamental principle of appellate practice in the United States.’”” (Gosney v. State of California (1970) 10 Cal.App.3d 921, 928 [89 Cal.Rptr. 390]; Brown v. Memorial Nat. Home Foundation (1958) 158 Cal.App.2d 448, 455 [322 P.2d 600] [cert. den., 358 U.S. 943 (3 L.Ed.2d 352, 79 S.Ct. 353)].) It “permits an appeal to be taken only from a final judgment which disposes of all the issues presented in the action.” (Horton v. Jones, supra, 26 Cal.App.3d 952, 957.)

The rule is equally, and logically, applicable as here to review by way of certiorari. In such a proceeding the nation’s high court has stated: “‘From the very foundation of our judicial system the object and policy of the acts of Congress in relation to appeals and writs of error,. . . have been to save the expense and delays of repeated appeals in the same suit, and to have the whole case and every matter in controversy in it decided in a single appeal.’” (Baltimore Contractors v. Bodinger (1955) 348 U.S. 176, 178 [99 L.Ed. 233, 236, 75 S.Ct. 249].)

*540The principle seems particularly apposite to proceedings before the Board, for the state’s Constitution, article XIV, section 4, mandates that workers’ compensation procedures “shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character,. . .” (Italics added.)

Many reasons point to the desirability of continued application of the rule to the Board’s procedures. There is of course need that they be handled expeditiously and not frustrated by repetitive reviews. Workers and their counsel are entitled to a reasonable degree of procedural certainty. It is manifestly foreign to our system that there be multiple collateral appeals from one decision. Must the worker or employer promptly seek review of each tentative determination such as that before us? If our decision shall stand it would appear that he must do so, or suffer deprival of any review. For the “law of this state does not allow... a review of any decision or order from which an appeal might previously have been taken. ...” (Woodman v. Ackerman (1967) 249 Cal.App.2d 644, 648 [57 Cal.Rptr. 687]; and see authority there collected.) And, having obtained such a review, will he then be denied his statutory right to seek later review of the Board’s final award, or part of it? And what will be his, or the employer’s, or the Board’s, procedural posture should the latter reconsider and desire to change its tentative determination after, and if, we shall affirm it? There are undoubtedly other and perhaps even more persuasive reasons, which do not presently come to mind.

I would, as did the court in Gumilla, dismiss or deny the application for review as premature.

Petitioner’s application for a hearing by the Supreme Court was denied June 18, 1980. Clark, J., and Richardson, J., were of the opinion that the application should be granted.