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Time for the WCAB to Act on Petitions for Reconsideration

March 28, 2023

Do you have any cases that have been pending on Reconsideration and remain unresolved for what you believe to be an unreasonable period of time? If so, you should be aware that ongoing delays issuing decisions at the WCAB Reconsideration Unit have drawn increasing attention, both in the judicial, and legislative realms.

On the judicial side, the case of Michele Earley vs. WCAB [Case No. B318842] is currently pending at the California Court of Appeal for the Second District.

In Earley, various petitioners filed a petition for writ of mandate, asking the Court of Appeal to declare the “grant-for-study” procedure of the Workers’ Compensation Appeals Board (Board) to be unconstitutional and unlawful pursuant to Labor Code Sections 5313 and 5909.

Labor Code Section 5909 provides that “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.”

On May 4, 2022 the Court of Appeal issued an Order to Show Cause why the Board should not be ordered: (1) to cease issuing orders on petitions for reconsideration that grant reconsideration for the purpose of further study without addressing whether reconsideration is warranted under Labor Code section 5903 (i.e., “grant-for-study” orders); and, (2) to comply with the requirement of Labor Code section 5908.5 that “any decision of the appeals board granting or denying a petition for reconsideration . . . shall state the evidence relied upon and specify in detail the reasons for the decision.”

Most recently, several petitioners have requested oral argument on the issue. A request by the California Applicant’s Attorneys Association (CAAA) to join the case as amicus was denied. With briefing on this issue completed as directed by the Court of Appeal, a decision is expected to be issued soon.

On the legislative side, the Reconsideration Unit’s long delays issuing decisions was brought to the attention of the Senate Rules Committee during a confirmation hearing for two commissioners, Joseph Capurro and Jose Razo the first week of March 2023, as reported in WorkCompCentral on March 9, 2023.

State Senator Richard Roth reportedly suggested that the legislature consider budgeting more money to address staffing shortages at the Reconsideration Unit. He also raised the possibility of legislation to extend the 60 day requirement in Labor Code Section 5909, to allow the Commissioners more time to act.

Meanwhile, workers compensation litigants with cases pending on Reconsideration continue to have no choice but to wait for decisions to issue, so they can proceed to litigate or finalize their cases.

In some cases, the Reconsideration Unit has even allowed Section 5909’s 60 days for them to “act upon” a petition for reconsideration to lapse, resulting in them being “deemed to have been denied”.  This leaves it up to the parties to find a way to finalize their cases. In the case of threshold issues, litigants then need to seek remand to the trial level to continue litigation of remaining issues.  In some rare instances, the WCAB has issued decisions on reconsideration after the 60 days has lapsed, acknowledging the lapse but still issuing decisions.

LFLM will continue to keep you updated regarding the Earley case, and any pending legislative action to amend or revise Labor Code Section 5909.

Paul D. Karasoff, Of Counsel, of our LFLM – San Francisco Office

Laughlin, Falbo, Levy & Moresi, LLP.