Hoch’s Appointment Brings Experience and Controversy to 3rd DCA

Hoch’s Appointment Brings Experience and Controversy to 3rd DCA
By John P. Kamin, Legal Editor

Gov. Arnold Schwarzenegger’s appointment of Andrea Hoch to the 3rd District Court of Appeal drew a mixed reaction from the applicants’ bar: She is considered an industrious attorney with an impressive resume, but she is also the lawyer who implemented a new Permanent Disability Rating Schedule that cut benefits in half while she was administrative director of the Division of Workers’ Compensation.

Gov. Schwarzenegger announced Hoch’s appointment to the appellate court last week. She will take the place of Justice Rick Sims, who has served since 1982.

Hoch is among four new appointees to the appellate court, which consists of a total of 10 justices. The four vacancies are attributable to three retirements, along with Tani Cantil-Sakauye’s ascension to the Chief Justice of the state Supreme Court.

The Commission on Judicial Appointments still must confirm Schwarzenegger’s appointments, and ironically enough, incoming Gov. Edmund G. “Jerry” Brown is one of the three commissioners who participate in that review during a meeting on Dec. 10.

Brown’s current role as state Attorney General entitles him to a seat on the commission. The other commissioners are state Supreme Court Chief Justice Ronald George, and Arthur Scotland, the presiding justice of the 3rd DCA.

While the commission may consider oral testimony about appointees, those wishing to testify must first submit a written request to the commission prior to Dec. 3.

Bart Mehlhop, a Sacramento-based applicants’ attorney who currently has a case pending at the 3rd District, said that he will always remember Hoch as the hard-working administrative director at the DWC in the days after the passage of the controversial Senate Bill 899.

As an applicants’ attorney, he views Hoch as a proponent of the legislation that has reduced benefits for injured workers. Hoch approved regulations that created a new Permanent Disability Rating Schedule — called for by the Senate Bill 899 reform measure — that took effect on Jan. 1, 2005. Studies have shown reforms cut average PD benefits by 40% to 70%. Critics charged that Hoch did not base the new rating schedule on any real data that measured wage losses, despite a statute that requires her to.

Department of Industrial Relations Director John Duncan decided — long after Hoch had departed her position as administrative director — not to update the rating schedule after the division’s wage-loss data showed a need to increase benefits by about 16%. Even though SB 899 requires an update to the schedule, there is no enforcement mechanism. Duncan said employers could not afford the cost increase in the midst of a severe economic downturn.

But Mehlhop points to Hoch as the source of the regulations that slashed his clients’ benefits.

“The dangerous part is that she has set us back for the past six years, in terms of now we’re in violation of the SB 899 statute that called for a reassessment of the permanent disability schedule,” he said. “The PD schedule has not been reassessed, and she was the one that set up the regulations that got around the things that would have been much harder to do legislatively.”

While he disagrees with Hoch’s implementation of the rating schedule regulations, Mehlhop noted that there is a bright side to Hoch’s appointment: She was a highly efficient administrative director, which means that she will likely be highly efficient with her caseload at the appellate court.

Richard “Jake” Jacobsmeyer, a Northern California defense attorney, said he believes Hoch’s appointment will benefit the workers’ compensation community because she has more exposure to workers’ comp than the average justice. He noted that Hoch is well-suited for the bench, because her responsibilities as Schwarzenegger’s legal affairs secretary were far broader than the niche subject of workers’ compensation.

“I think we have to keep in mind that comp was a small percentage of her responsibilities when she was attorney for the governor,” Jacobsmeyer said. “She had a much bigger role than what she did as the administrative director for comp, and probably has a much broader range of experience in general civil litigation than she would, particularly in workers’ compensation. Those kind of issues go into consideration for a justice, it’s rather rare that you see a purely workers’ comp attorney appointed to the appellate court.”

Hoch’s resume appears to provide even more support for Jacobsmeyer’s point. She spent 12 years at the Attorney General’s office, four years as an attorney at the Public Employment Relations Board, two years as counsel for the Agricultural Labor Relations Board and three years in private practice.

Barry Hinden, the current president of the California Applicants’ Attorneys Association, said that CAAA is not taking a formal position on Hoch’s appointment. CAAA had formally opposed her nomination to administrative director of the DWC in 2004 and 2005.

Jacobsmeyer noted that it is somewhat common for outgoing governors to appoint their staffers to the appellate bench. For example, when Jerry Brown was an outgoing governor in 1982, he appointed Justice Tony Kline to the 1st District Court of Appeal.

Coincidentally, Brown is also the governor who appointed Sims – the justice whom Hoch is replacing – to the Placer County Superior Court in 1980. While Sims concurred with a number of workers’ compensation opinions in recent years, he authored few. However, in September 2008, he did write the court’s opinion in Dept. of Corrections and Rehabilitation v. WCAB, No. C057410, 9/10/08.

In that case, Sims ruled that a correctional officer’s heart condition is not subject to apportionment, because the legislative intent behind Labor Code 4663(e) is to protect public safety officers. Sims’ retirement becomes effective today, Nov. 30.

Assuming that the Commission on Judicial Appointments approves Hoch’s appointment, her odds of being assigned a workers’ compensation case anytime soon are relatively low.

Currently, there are five cases at the 3rd District Court of Appeal which the court intends to issue opinions on, and they have been fully briefed for at least a month or more. Those cases are:

• Motheral v. WCAB
• Allied Waste Industries Inc. v. WCAB
• Larkin v. WCAB
• Meeks Building Centers v. WCAB.
• Sedgwick Claims Management Services v. WCAB
• Additionally, there are four cases where parties have filed petitions for a writ of review, including:
• County of San Joaquin v. WCAB
• Popovich v. WCAB
• Ungureanu v. WCAB
• Consolidated Personnel Corp., et al. v. WCAB

For more information about the Commission on Judicial Appointments, go here:
http://www.workcompcentral.com/pdf/2010/misc/NR571011292010.pdf.