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It has long been recognized that an applicant's ability to participate in vocational retraining is a significant factor in assessing the worker's permanent disability. (LeBoeuf v. WCAB (1983) 48 CCC 587, 597.) In 2004, the Legislature enacted Senate Bill (SB) 899, and among the provisions was a requirement that permanent disability give consideration to an applicant's "diminished future earnings capacity," rather than the "ability to compete in the open labor market" (Labor Code § 4660(a).) The Labor Code was amended to require permanent disability to incorporate the "impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition)" (LC 4660(b)). Prior to SB 899, permanent disability generally was rated based on work restrictions reported by doctors, but now, it is generally rated using impairments assigned by doctors under the AMA guides.
Under former Labor Code § 5909, a petition for reconsideration was deemed denied by operation of law unless the Workers' Compensation Appeals Board (WCAB) acted on it within 60 days from the date of filing. Effective July 2, 2024, LC 5909 states:
For more than 30 years, the Workers' Compensation Appeals Board (WCAB) relied on Shipley v. WCAB (1992) 7 Cal. App. 4th 1104 to decide petitions for reconsideration, even if it did not act timely on a petition pursuant to former Labor Code § 5909. That statute stated, "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." Based on Shipley, the WCAB generally held that if a petition was not considered within the time limit of LC 5909 due to the WCAB's own inadvertent error, it still may decide the merits of the petition, even if the 60-day time period has elapsed.
When a party disputes an order, decision, or award issued by a workers' compensation judge (WCJ), there are two options for appeal. Pursuant to Labor Code § 5900, a party may file a petition for reconsideration of a "final order, decision, or award made and filed by the appeals board or a workers' compensation judge." On the other hand, LC 5310 states, "The appeals board may ... remove to itself, or transfer to a workers' compensation administrative law judge the proceedings on any claim." A petition for removal is the appropriate remedy for interim, nonfinal orders.
As discussed in an earlier Special Report, for more than 30 years, the Workers' Compensation Appeals Board (WCAB) relied on Shipley v. WCAB (1992) 7 Cal. App. 4th 1104 to decide petitions for reconsideration, even if it did not act timely on a petition pursuant to Labor Code § 5909. That statute states, "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." Based on Shipley, the WCAB generally held that if a petition was not considered within the time limit of LC 5909 due to the WCAB's own inadvertent error, it still may decide the merits of the petition, even if the 60-day time period has elapsed. On Dec. 18, 2023, the 2nd District Court of Appeal issued its decision in Zurich American Insurance Co. v. WCAB (2023) 97 Cal. App. 5th 1213, holding that this practice was improper. Zurich stated that "the language and purpose of section 5909 show a clear legislative intent to terminate the Board's...
The workers' compensation appeals board (WCAB) has historically and increasingly faced a struggle to handle the volume of cases that come its way. As a result, too often it has failed to take action on a filed petition for reconsideration within the statutorily required 60 days. To date, parties have been protected from that failure because it was deemed a due process right to have the petition reviewed by the WCAB. Currently, scores and perhaps hundreds of cases are in that situation. In a new appellate court case, Zurich American Insurance Co. v. WCAB, it all seems to have changed, leaving all those parties without a remedy, and changing the reconsideration demands on practitioners. Labor Code § 5909 states, "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." It was not uncommon for the WCAB to grant reconsideration beyond the 60-day period due to its own errors or inefficiencies. But...
On Aug. 1, 2023, the 2nd District Court of Appeal issued its decision in Earley v. WCAB invalidating the long-standing practice of the Workers' Compensation Appeals Board (WCAB) to grant petitions for reconsideration without first deciding whether reconsideration is warranted. The court held that grant-for-study orders violated Labor Code § 5908.5. But it also held that the WCAB is not required to issue a final ruling on the merits within 60 days. This case was discussed in detail in our previous article.
On Aug. 1, 2023, the 2nd District Court of Appeal issued its decision in Earley v. WCAB invalidating the long-standing practice of the Workers' Compensation Appeals Board (WCAB) to grant petitions for reconsideration without first deciding whether reconsideration is warranted. It held that pursuant to Labor Code § 5908.5, the WCAB must state in detail the reasons for its decision to grant reconsideration and the evidence that supports it. But it also held that the WCAB is not required to issue a final ruling on the merits within 60 days.
