On June 22, Governor Brown announced that Juan Pedro Gaffney, 80, of Sebastopol, had been appointed to the Workers’ Compensation Appeals Board (WCAB). Per the announcement, “Gaffney has been a member of the California Alcoholic Beverage Control Appeals Board since 2017 and director at Coro Hispano de San Francisco since 1975. He was director of Hispanic liturgy at Mission Dolores from 1993 to 2008 and was the first artist-in residence at the Yerba Buena Center for the Arts. Gaffney was an associate professor of philosophy at St. Joseph’s College and a lecturer at Saint Mary’s College from 1972 to 1996. Gaffney is a vice president of the Instituto Pro Música de California. He earned a Master of Arts degree in music from Stanford University.”
This lengthy quote of Mr. Gaffney’s career is in part to note that he is not a lawyer, and apparently has no direct relationship with California’s costly and complex workers’ compensation system. However, Labor Code Section 112 states in part that, “Five of the members of the appeals board shall be experienced attorneys at law admitted to practice in the State of California. The other two members need not be attorneys at law. All members shall be selected with due consideration of their judicial temperament and abilities.”
In its publication, Standing Committee on the Federal Judiciary -What It Is and How It Works (2009), the American Bar Association (ABA) states, “In evaluating ‘judicial temperament,’ the Committee considers the prospective nominee’s compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law.” If this is how temperament is measured to be qualified to be on the Federal bench, it would seem appropriate to apply the same standard for Commissioners on the Appeals Board. After all, one could convincingly argue that temperament is more valuable a character trait in dealing with dueling applicant and defense attorneys than in a rules-observant courtroom where decorum is expected and enforced.
It would seem, consequently, that Commissioner Gaffney meets these criteria given his life’s work.
The circumstances surrounding this appointment may cause discussions amongst the elites within the system, as it appeared to take many by surprise. But speculation is neither relevant nor productive. If this is a signal that the two remaining vacancies at the WCAB will also be filled before the end of the year, then that may be cause for relief for many who have been anxiously watching the sun set on the Brown administration. Workers’ compensation cognoscenti will apparently need to view the “Newsroom” page on the Governor’s website more frequently to determine whether this is in fact going to happen.
The prospect of there being seven commissioners before the end of the year, however, also signals an opportunity lost for the Legislature to reform the way in which panel decisions are issued by the WCAB and the conflicts that arise from inconsistent decisions on important questions of law. That, however, will not be up for discussion in 2018.
PUBLISHER’S NOTE: Publius is written by a consortium of writers, sometimes internal, most frequently external. Workers’ Comp Executive believes that it has the responsibility to air most viewpoints and welcomes the comments of its community on any subject. Publius does not necessarily represent the views of this publication.