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WCAB Issues En Banc Order and Notice of Intent to Impose Sanctions for Filing Frivolous Petitions for Reconsideration

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.

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SPECIAL REPORT: WCAB Issues Significant Panel Decision That It Will Continue to Follow Shipley

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...

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Special Report: WCAB Must Act on Petition for Reconsideration Within 60 Days

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...

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Handling Pending Appeals Following Earley v. WCAB

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.

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Special Report: Appellate Court Invalidates WCAB's Practice of Granting Reconsideration for Further Study

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.

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