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Court of Appeal Nixes WCAB’s “Grant for Further Study”

August 3, 2023

The California Court of Appeal for the Second District issued a writ of mandate on August 1, 2023, ending the WCAB’s longstanding procedure of granting Petitions for Reconsideration for Further Study. Unfortunately, however, do not expect the WCAB to start issuing final decisions at a blistering pace just yet.

There has been a significant uptick in the number of “grant-for-study” orders in recent years, especially since the start of the pandemic in 2020. If you have petitioned for reconsideration in the last three years, chances are that you have been left waiting months, even years, for a final decision following an order granting further study.  This process leaves litigants with no choice but to wait for a decision to issue so they can either proceed to litigate or settle their cases.

The Board contended that compliance with Labor Code section 5908.5 is impossible, presumably due to staffing shortages at the Reconsideration Unit and budgetary restrictions. However, the Court of Appeal was unsympathetic and is steadfast that the Board cannot ignore the Labor Code.

The Court of Appeal held that the Board’s utilization of a boilerplate statement that further study is needed based upon the initial review of the record violates section 5908.5, which requires the Board to state the evidence relied upon and must specify in detail the reasons for the decision.

Therefore, the Board can no longer use “grant-for-study” orders to circumvent Labor Code section 5909, which requires the Board act on a Petition for Reconsideration within 60 days from the date of filing or the petition is deemed to have been denied. However, the Court of Appeal was clear in stating that the Board is not required to issue a final ruling on the merits within 60 days.

Instead, the Board must comply with section 5908.5, which requires it to state the evidence relied upon and “specify in detail” the reasons for the decision. So, the Board is no longer allowed to rubber stamp “grant-for-study” orders to buy itself more time to act on Petitions for Reconsideration.

It will be interesting to see how the Board handles this decision. Will they simply let more petitions be deemed to have been denied by not acting upon them within 60 days? We could also see an increase in the number of petitions for reconsideration denied via concurrence with the findings and orders of the trial judge. We do not anticipate this decision will result in final decisions being issued within the 60 day window going forward, as the WCAB themselves have already admitted this is impossible. However, perhaps by eliminating the “grant for study” practice, we can expect the WCAB to be more selective with the cases in which they grant reconsideration, thereby reducing the number of cases requiring a written final decision. In addition, we read the Court of Appeal’s decision as prospective and not retroactive; cases in which the WCAB has already granted reconsideration for further study are likely to continue to be slowly meted out by the WCAB over the coming months; but the practice of granting for further study is ended from the date of the decision on. At the very least, the requirement that the WCAB state the evidence and reasons for granting reconsideration will ensure the parties are not left entirely in the dark while waiting for a final decision.

Written By:

Aleah McGraw, Esq., of our LFLM – San Francisco Office

Laughlin, Falbo, Levy & Moresi, LLP.