PETITIONS FOR RECONSIDERATION – COURT OF APPEAL’S REJECTION OF LONGSTANDING PRACTICE BY WCAB
GMK ALERT – Today’s News You Can Use
ISSUE DATE: Thursday, August 3, 2023
IN THIS ALERT: PETITIONS FOR RECONSIDERATION – COURT OF APPEAL’S REJECTION OF LONGSTANDING PRACTICE BY WCAB
In the very recent appellate case of Michele Earley et al. v. WCAB (B318842), the Court of Appeal addressed the time and nature of the WCAB’s granting of Petitions for Reconsideration. It held as follows:
“We invalidate a longstanding practice of the Workers’ Compensation Appeals Board (Board) in ruling on petitions for reconsideration. A party to a workers’ compensation proceeding can petition the Board for reconsideration if that party is unhappy with the ruling of either a workers’ compensation judge or the Board itself. By statute, the Board must act upon such petitions within 60 days. To satisfy this requirement, the Board often grants petitions for purposes of further study without first deciding whether reconsideration is actually warranted. Later— sometimes many months after the petition for reconsideration was filed—the Board issues a decision on the merits affirming, reversing, or modifying the ruling at issue”.
Five separate Petitioners involving five different cases argued that the “grant-for study” procedure was an unauthorized way to extend the 60-day deadline. The appellate court agreed stating:
“The Board must comply with section 5908.5 when it orders reconsideration. That is, the Board must state in detail the reasons for its decision and the evidence supporting it. Those reasons must be based on the grounds identified in section 5903. The Board need not, however, issue a final order within 60 days. The review necessary to support a decision to grant a petition for reconsideration within 60 days does not involve the same burden as the preparation of a final ruling.
The Board must engage in the analysis necessary to permit a reasoned decision as to whether reconsideration is warranted based upon the factors identified in section 5903 and the evidence in the particular case. The Board then can decide whether to affirm, to modify, or to vacate the order at issue after further consideration and a more thorough review of the record”.
Therefore, the WCAB is no longer allowed to “rubber stamp” the granting of a Petition for Reconsideration for “further study” without addressing the grounds for granting the Petition. However, a final decision by the WCAB is not required within the 60-day time frame.
What this means for you:
Action by the WCAB is still required on a Petition for Reconsideration within 60 days of its filing, or it is deemed denied by operation of law.
Therefore, we should no longer receive the boilerplate “grant-for-study” orders granting reconsideration. This should provide the parties with more information regarding the basis for granting the Petition, and theoretically, should reduce the time within which the Board provides a final decision.
Matthew D. Crowe, Esq.
Partner