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Appellate Procedure
(or how to clear a room in 30 seconds)
Louis Larres, Esq.
Bradford & Barthel, LLP
Recons & Writs
A party dissatisfied w/a final order of a WC Judge may
seek review of that order by filing a petition for
reconsideration. (LC sec. 5900)
A final order is one which finally disposes of substantive
rights in the matter, and includes a threshold disposition.
Decisions on reconsideration of the appeals board are
appealable by petition for writ of review with the Court
of Appeal or Supreme Court of the State of Ca. (LC
sec. 5950)
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Must be “aggrieved” to have standing
Labor code section 5900 provides:
“…any person aggrieved directly or indirectly by a final order,
decision or award made by the Board or WCJ, may petition
the Appeals Board for reconsideration”.
The aggrieved person must “be a party to the matter”
Claimant
Dependent
Employer
Carrier
Lien Claimant
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Petition for Recon - Timeline
Petition for Reconsideration
Requires final order from the WCJ.
No longer need to file w/ DWC Office which issued
final order thanks to EAMS.
Time limit to file petition for recon:
20 days from service + 5 days for mailing (even if served
via EAMS)
Not sufficient to be mailed w/in statutory
period, but “must be received by the Board
w/in that period.”
Even when filing in EAMS it must be filed by 5:00 that
day.
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Formalities of Service
Must be served upon all adverse parties.
Proof of service required.
Failure to do either can be fatal.
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Other Considerations
Petition must provide a fair statement of facts
with citation to the record. (Reg. 10840).
Must be under 25 pages.
Board discourages filing of supplemental
petitions.
No exhibits!! (At all).
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Grounds for Reconsideration
Actions in Excess of Powers
Labor Code 5903(a) states – that the first ground for granting
reconsideration is “that by the order, decision or award
made and filed by the appeals board or workers
compensation judge, the appeals board acted without or in
excess of its powers.”
Fraud
The second ground is “that the order, decision or award
was procured by fraud.”
Petition must make specific and detailed offer of proof
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Grounds for Reconsideration
Findings Not Justified by Evidence
Third ground for reconsideration – “that the
evidence does not justify the findings of fact.”
Most common ground raised.
Petition must set out specifically in detail how the
evidence fails to support the findings.
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Grounds for Reconsideration
Newly-Discovered Evidence
Fourth ground for reconsideration is “petitioner has
discovered new evidence material to him or her, which he or
she could not, with reasonable diligence, have discovered
and produced a the hearing”
Petition must be specific and detailed and include:
Witnesses
Testimony
Description of evidence
Effect of evidence will have on the record and prior decision
Explanation as to why evidence could not have been discovered
or produced prior to case submission.
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Grounds for Reconsideration
Decision Unsupported by Findings
Fifth and final ground is “that the findings of fact
do not support the order, decision or award”.
This sort of defect does not occur frequently.
Parties often allege this ground when they feel the
decision of the WCJ mistakenly relies on
the adverse party’s evidence rather then
their own.
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Procedures for Reconsideration
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Table of Times for Board Action
Filing of petition for
reconsideration
WCJ Modification 15 days from filing
period
Filing of petition for
reconsideration
WCJ Rescission w/
further proceedings
ordered
15 days from filing
petition; Proceedings
initiated w/ 30 days
from recession
Filing of petition for
reconsideration
WCJ Report on Recon 15 days from filing
petition
Filing of petition for
reconsideration
WCAB Grant of
Petition or denial
reconsideration
60 days from filing
petition or denied by
operation of law
Event Board Action Time Limits
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WCJ May Modify or Rescind
WCJ may “amend”, “modify” or “rescind” a
decision or order.
WCJ may rescind or modify a decision within 15
days of a filing for a removal petition.
Upon rescinding the original order or award,
rules require further proceedings to be initiated
within 30 days from the rescission order.
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WCJ May Modify or Rescind
Simple modifications or amendments to an order,
decision or award do not require any additional
proceedings. Clerical v. Substantive.
A rescinded order requires the WCJ “to issue a decision
on all issues originally raised and not just those raised in
the petition for reconsideration.” Clock starts anew.
An answer for reconsideration may be filed within ten
days of the filing of the original petition.
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The Appeals Board
7 members, 5 Attorneys, 6 Year Terms
Appeals board is made up of seven (7) members,
of which five (5) must be attorneys.
All appointed by the Governor to six-year terms.
Members carry the title of “commissioner”.
One member is designated as “chairman”.
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The Reconsideration Unit – Appeals
Board
A legacy paper file is sent to the board or
accessed electronically through EAMS.
Every file logged in by the “control unit”.
Each case pending on reconsideration assigned a
panel of three (3) members of the board for
“hearing, consideration and decision.”
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En Banc Decisions
Labor Code Sec 115 provides for cases to be
“reassigned by the Chairman on a majority
vote of the appeals board to the appeals board
as a whole in order to achieve uniformity of
decisions, or in cases presenting novel issues.”
En banc decisions are persuasive authority and
are binding precedent on all WCAB panels and
all WCJ’s.
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Board Action
The Board may grant or deny reconsideration
without scheduling any further proceedings.
Per Labor Code sections – 5906:
“…the appeals board may, with or without further
proceedings and with or without notice affirm,
rescind, alter, or amend the order decision or award
made and filed by the appeals board or the workers’
compensation judge on the basis of the evidence
previously submitted in the case, or may grant
reconsideration and direct the taking of addition
evidence…”
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Board Action
LC section – 5907 empowers the board thus:
“If at the time of granting reconsideration, it appears to
the satisfaction of the appeals board that no sufficient
reason exists for taking testimony the appeals board may
affirm, rescind, alter, or amend the order, decision or
award made by the appeals board or the workers’
compensation judge and may without further
proceedings, without notice, and without setting a time
and place for further hearing, enter its
findings, order, decision or award based
upon the record in the case.”
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Time Limits for the Board
LC Section 5909 ~
Board must act upon a petition for reconsideration
w/ 60 days of the date of the filing of the petition
or the petition is deemed denied by the operation
of law.
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Reconsideration on Board Motion
The Board has the power under LC 5900 (b) to
grant reconsideration of its own motion of any
order, decision or award filed by the Board or
any of its Workers’ Compensation Judge’s
within 60 days of the filing of such disposition.
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OTHER CONSIDERATIONS
Reconsideration of the Reconsideration
Petition for Emergency Stay (Reg. 10281)
Must be served on opposing party no later than 10:00 a.m. of the
immediately preceding court day.
Notice must state nature of relief and give the date, time, and place that
petition will be heard.
Petition for Removal
Non-final decisions
Substantial prejudice/irreparable harm
Bias
Does not stay the proceedings like a recon does
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Judicial Review
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Writ of Review
Judicial review is implemented under LC 5950
Requires final board order
Filed with Court of Appeal – Appellate District
where petitioner resides
Time limits to file:
45 days from issuance; no extension for mailing except
where recon order never received.
Appellate court decisions are final 10 days after
the filing of the opinion, unless writ granted.
Writ of Review - Timeline
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Grounds for Review
Grounds for appellate review are limited by
Labor Code Section 5952 to:
Appeals board acted without or in excess of its
powers.
The order, decision or award was procured by fraud.
The order, decision or award was unreasonable.
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Grounds for Review
Cont…
The order, decision or award was not supported by
substantial evidence.
If findings of fact are made, such findings of fact
support the order, decision or award under review.
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Writ Denied Panel Decisions
Writ Denial
“An appellate court may, and generally does, deny
petitions for writ of review without specifying any
reasons.”
A writ denied case stands as a final Board panel
opinion that the Court of Appeal did not see fit to
disturb. It is not a Court of Appeal opinion.
The Court of Appeal has also approved that writ
denied cases “are citable authority as to the
holding of the Board”.
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Granted Writs
Counsel for both the petitioning and responding
parties orally present their positions to the
justices of the court and answer any questions.
The matter is submitted and the court has 90
days to issue a decision.
Decisions are in the form of written opinion
either affirming or annulling the board order or
remanding the case for further proceedings.
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Other considerations
Potential for bad case law.
How to assess likelihood of success?
LC 5801 – If injured employee or the dependent of a deceased
employee prevails in any petition by the employer for a writ of
review and the reviewing court finds that there is no reasonable
basis for the petition, it shall remand the cause for the purpose
of making a supplemental award awarding a reasonable attorney's
fee for services rendered in connection with the petition for writ
of review.
Greater risk of getting hit with fees if the only ground for appeal is lack of
substantial evidence.
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Published & Unpublished Opinions
An appellate opinion issuing in a workers’
compensation case may be:
Published
Partially published
Unpublished
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Published & Unpublished Opinions
Published Opinions
To be published, an opinion must establish a new
rule of law or resolve or create an apparent conflict
in the law.
Unpublished Opinions
“…must not be cited or relied upon by a court or a
party in any other action of proceedings…”
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Petition for Writ of Mandate
Authorized by LC 5955.
Not frequently used.
WCAB also has authority under LC 5309(a) to
order a judge to try an issue, but can also be
accomplished by petition for removal.
A petition for removal is a prerequisite for
petition for writ of mandate. (Brauer v. WCAB
62 CCC 1439).
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Supreme Court Review
Appellate Opinion & Disposition/writ granted
Filed with Supreme Court
Timeline: 40 days + 10 days to file (10 days if not)
“…within ten (10) days following the finality of the
appellate disposition (40 days after the filing of an
appellate opinion, or ten days after the filing of an order
denying a writ), the “losing” party may file a petition for
review in the Supreme Court.”
Supreme Court
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Grounds for Review by S. Ct.
The Supreme Court may order review of a Court of
Appeal decision:
(1)When necessary to secure uniformity of decision
or to settle an important question of law;
(2)When the Court of Appeal lacked jurisdiction;
(3)When the Court of Appeal decision lacked the
concurrence of sufficient qualified justices; or
(4)For the purpose of transferring the matter to the
Court of Appeal for such proceedings as the
Supreme Court may order.
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Supreme Court
Supreme Court has 60 days to grant the petition or
extend on its own motion.
If a petition is granted, the court may start the appellate
process over again with oral arguments and issue an
opinion and decision affirming, reversing or modifying
the decision of the court of appeal.
It’s more common for the Supreme Court to transfer the
matter back to the Court of Appeals with instructions to
conduct further proceedings at their direction.
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Contact Information:
Louis Larres – E-mail: [email protected]
Office: (559) 442-3602
Cell: (559) 259-4366
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