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Unpublished Opinions Are Not Citable

"Sullivan on Comp" resolves to be the most comprehensive treatise on California workers' compensation. Accordingly, its authors strive to include every relevant case.

Different types of cases cited in "Sullivan on Comp" are weighted differently. Decisions from the California Supreme Court and published opinions from the California Courts of Appeal are binding on the Workers' Compensation Appeals Board and its judges. If possible, practitioners should cite those cases to support an argument.

Of course, given the significant number of workers' compensation issues, not every issue has been decided at the appellate level. The vast majority of cases are decided by the Workers' Compensation Appeals Board. Labor Code § 5703 allows "prior decisions of the appeals board upon similar issues" to be admitted into evidence. The board, however, also issues different types of decisions, which also are weighted differently.

Pursuant to LC 115, a case may be reassigned "to the appeals board as a whole in order to achieve uniformity of decision, or in cases presenting novel issues." When the entire group of seven commissioners sit to decide a case, it's known as an en banc decision, and such cases are "binding on panels of the Appeals Board and workers' compensation judges as legal precedent under the principle of stare decisis" (California Code of Regulations 10325(a)).

Sometimes, all the members of the appeals board designate a decision as being of significant interest and importance to the workers' compensation community, even if the case wasn't decided by all of them as a whole. They are called "significant panel decisions." They are intended to augment the body of binding appellate and en banc decisions by providing further guidance to the workers' compensation community (CCR 10305(k)). Significant panel decisions are not binding precedent (CCR 10325(b)). But almost always they are followed when no other binding authority exists.

The majority of decisions issued by the WCAB are decided by three commissioners selected for a particular case appealed from the trial level. Such panel decisions are not binding precedent and have no stare decisis effect, but they are citable and may be considered by the appeals board and its judges.


Finally, some cases decided by the California Courts of Appeal are not designated for publication. They are identified in "Sullivan on Comp" with the notation "(Court of Appeal opinion unpublished in official reports)." Although such cases are decided by the Courts of Appeal after an appeal of a decision of the WCAB, pursuant to California Rules of Court, rule 8.1115(a), "an opinion of a California Court of Appeal ... that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action."

Unpublished opinions from the Courts of Appeal may not be cited by parties making an argument in another case. The appeals board has stated that it's " unethical for an attorney to cite an unpublished case without so much as a mention of the case's limited status as precedent." (Reitmeier v. WCAB (2002) 67 CCC 681 (writ denied).) Moreover, a judge may not rely on an unpublished case to support a decision. (See Facundo v. WCAB (2006) 71 CCC 834 (writ denied).)

Because unpublished opinions from the Courts of Appeal are not citable, readers might wonder why they are even cited in "Sullivan on Comp." They help provide context, and further our intent to be the most comprehensive treatise on California workers' compensation.

The California workers' compensation system encompasses many issues and some are not guided by binding precedent. Many unpublished decisions deal with unsettled issues or a unique application of an issue. Although unpublished decisions themselves are not citable, practitioners can review them to understand the reasoning and the authority cited to enhance their own arguments.

"Sullivan on Comp" wants to provide practitioners with all relevant authority; to provide the tools to craft viable arguments. Ultimately, it's up to practitioners to decide which tools to wield, and how.

For further discussion on the weight of cases in the California workers' compensation system, see Sullivan on Comp Section 1.13 Level of Authority. For further discussion on unpublished cases from the Courts of Appeal, see Sullivan on Comp Section 16.83 Appellate Review –– Appellate Court Action.

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