Metropolitan News-Enterprise


Thursday, August 3, 2023


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Court of Appeal:

WCAB Skirts Time Limit for Acting on Reconsideration

Board Is Ordered to Decide Within 60 Days of Receiving Petition Whether or Not to Grant Reconsideration, as Required by Statute; Opinion Says the Longstanding ‘Grant-and-Hold’ Procedure Is Not in Compliance


By a MetNews Staff Writer


The Court of Appeal for this district has called a halt to games-playing by the Workers’ Compensation Appeals Board, holding that a statute requiring that the board “act” on petitions for reconsideration within 60 days is not satisfied by members granting themselves extra time, within that period, to decide if a matter is to be determined anew.

Div. Eight acted in response to a petition for a writ of mandate sought by five aggrieved claimants. Although their proceedings before the board have now been finally resolved, the court opted to issue a decision despite mootness because the “issue is of public interest and is likely to recur.”

Justice John Shepard Wiley Jr. of Div. Eight authored the opinion, filed Tuesday. He said there is “a longstanding practice” of the board to feign compliance with Labor Code §5909 by purporting to grant reconsideration within the time allotted, but limiting the scope of its supposed reconsideration to a “study” as to whether further decision-making is needed.

Sec. 5909 provides:

“A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date of filing.”

Procedure Must End

Wiley wrote:

“Five Petitioners correctly argue the Board’s grant-for-study procedure is an unauthorized way to extend the 60-day deadline….The Board may not simply grant reconsideration for the purpose of further study. We therefore issue a writ of mandate requiring the Board to cease its grant-for-study procedure….”

The opinion declares:

“We issue a peremptory writ of mandate commanding the Workers’ Compensation Appeals Board to end its practice of granting petitions for reconsideration solely for purposes of further study….”

Wiley said the grant-for-study procedure harks to the 1950s, if not earlier. He noted that “the Board issued grant-for-study orders in about 19 percent of cases from 2015 to 2019 and in about 38.5 percent of cases in the pandemic-affected years of 2020 and 2021” and that as of Nov. 2, 2021, 543 workers’ compensation cases in which such an order had been issued were lingering.

Sec. 5900(a) provides that a petition for reconsideration of a decision of a workers’ compensation judge is addressed to the board, not the judge who made the decision, as is a petition for reconsideration of a board decision.

Form of Orders

The jurist also said that a Labor Code section “requires the Board to make a reasoned decision when granting reconsideration” and that its grant-for study orders do not reflect compliance.

He quoted the announcement the board issued when it granted “reconsideration” for the purpose of a “study” in the petitioners’ cases:

“Taking into account the statutory time constraints for acting on the petition, and based upon our initial review of the record, we believe reconsideration must be granted to allow sufficient opportunity to further study the factual and legal issues in this case. We believe that this action is necessary to give us a complete understanding of the record and to enable us to issue a just and reasoned decision. Reconsideration will be granted for this purpose and for such further proceedings as we may hereafter determine to be appropriate.”

Wiley quoted Labor Code §5908.5 as saying:

“Any decision of the appeals board granting or denying a petition for reconsideration…shall be made by the appeals board and not by a workers compensation judge and shall be in writing, signed by a majority of the appeals board members assigned thereto, and shall state the evidence relied upon and specify in detail the reasons for the decision.”

He remarked:

“The Board’s grant-for-study orders in these cases fell short. These orders gave no reason for granting reconsideration other than a boilerplate statement that further study is necessary ‘based upon our initial review of the record.’ A rubber stamp could have authored these statements.”

The jurist declared:

“Section 5908.5 requires the Board to explain its reasons for granting reconsideration and to identify the evidence supporting its decision. The statute is clear. The Board must obey it.”

The writ orders the board “to comply with section 5908.5 when granting petitions for reconsideration, including the requirement that the Board ‘state the evidence relied upon and specify in detail the reasons for its decision.’ ”

There was a third aspect to the opinion.

“We also hold that the Board is not required to issue a final ruling on the merits within 60 days,” Wiley said. “Statutory language negates the Petitioners’ argument to the contrary.”

He pointed out that §5909 calls for a petition to be “acted upon within 60 days from the date of filing” and that the section “does not state the Board must issue a final decision on the merits of a petition within 60 days.”

Wiley found that the “[p]etitioners meet the statutory requirements for an award of attorney fees under Code of Civil Procedure section 1021.5,” a private attorney general statute, but halved the amount they sought in light of their limited success, awarding $110,777.25 in attorney fees and $7,891.63 in costs.

The case is Earley v. Workers’ Compensation Appeals Board, 2023 S.O.S. 2807.


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