Fundamentals of Work Comp Law - Part 7

Saturday, April 26, 2003 | 0

The following article is the seventh in a series for attorneys and other professionals just getting started in workers' compensation. A list of the earlier segments is at the end of this article. This article goes over the review process including reconsideration and appellate review.

Authors Richard Owen and Harold Greene have graciously permitted the republication of their outline from the annual class on workers' compensation they give to the CA State Bar Section Education Institute. Though not in narrative format, workcompcentral editors felt the material to be of excellent educational quality in present form and are proud to publish it here.

XXII. Petition for Reconsideration and Petition for Writ of Review (Labor Code sections 5900 - 5911, sections 5950 -5956; Rules 10840-10867):

Any person aggrieved directly or indirectly by any final order, decision or award made and filed by the appeals board or workers compensation judge may petition the appeals board for reconsideration. The petition must be verified and filed within 20 days of the order, decision or award at the district office of the WCAB from which the order, decision or award issued. The 20 day time limit is extended by 5 days pursuant to Code of Civil Procedure section 1013 if the order, decision or award was served by mail. The statutory grounds are spelled out in Labor Code section 5903. If newly discovered evidence is the basis for the petition, additional pleading requirements are found in Rule 10856. Under Rule 10859, the trial judge has 15 days after the filing of the petition for reconsideration to amend, modify, or rescind the order, decision or award; thereafter the local Judge has no power to act on the matter until after the WCAB renders a decision on the petition for reconsideration. Within that 15 day, the trial judge is also require to prepare a report and recommendation discussing the issues raise din the petition for reconsideration and make a recommendation to the WCAB as to the disposition of the petition. Rule 10860. Issues not raised in the petition for reconsideration are waived. Labor Code section 5904.

After the preparation of the report and recommendation of the trial judge, the Board's file is physically transported to the WCAB in San Francisco for the WCAB to consider the issues raised in the petition. The WCAB has 60 days from the date of filing of the petition in which to make a decision. Labor Code section 5900(b). The petition is deemed denied if the WCAB does not act within that 60. Labor Code section 5909. As a general practice, the WCAB does not let the 60 days pass without making a decision.

Under a petition for reconsideration, the WCAB has the power to conduct an independent review of the evidence and make its own conclusions on issues of fact. The WCAB is not limited to the view of the evidence of the trial judge. However, the WCAB will give great weight to the opinion of the trial judge on matters of credibility since the trail judge had the opportunity to observe the demeanor of the witness during trial. See Garza v. WCAB (1970) 3 C.3rd 312, 35 CCC 500; Lamb v. WCAB (1974) 11 C.3rd 274, 39 CCC 310; Bracken v. WCAB (1989) 214 C.A.3rd 246, 54 CCC 349.

Any party newly aggrieved by any decision by the WCAB after a petition for reconsideration may file a petition for reconsideration of that decision with the WCAB in San Francisco within 20 days of the issuance of the order, decision or award issued by the WCAB following the same procedures outline hereinabove. Or that party may proceed with a Writ of review.

XXIII. Settlements:

A. Stipulations with Request for Award:

B. Compromise and Release (Labor Code sections 5000 - 5005; Rules 10870-10888): Liens are to be resolved before the approval of an C&R or STIP; agreements with "pay, adjust or litigate" or "to be adjusted" language is not a resolution of the lien and will not be approved. New Rule 10888.

C. Attorney's Role in assisting client to select form of settlement:

D. Review of settlements by Workers' Compensation Referee for adequacy:

XXIV. Sanctions (Labor Code section 5813; Rule 10561):

A. See Betsworth v. WCAB (1994) 26 Cal.App.4th 586, 59 CCC 450 for a discussion of contempt before a workers' compensation judge/referee.

XXV. Rehabilitation matters (Labor Code sections 139.5, 4635 - 4647, Rules 10001-10021, 10122-10133):

A. Original jurisdiction on all vocational rehabilitation matters rests with the Rehabilitation Unit of the DWC (Labor Code section 139.5) All matters relating to the provision benefit must first be submitted to the Rehabilitation Unit. Disputed issues are submitted to the Rehabilitation Unit by the filing of a Request for Dispute Resolution (Form RU-103). Formal conferences are held thereafter and the Rehabilitation Unit Consultant will make a written decision resolving the dispute. Appeals from the Decision and Order (D&O) of the Rehabilitation Unit Consultant must be filed within 20 days of the date of the Order (plus 5 days for mailing) with the WCAB.

B. Rehabilitation Appeals (Rules 10955 - 10958): An appeal of a D&O from the Rehabilitation Unit is instituted by filing an appropriate petition with the WCAB. Proceedings so instituted "shall be assigned, heard and determined in the same manner as proceedings instituted for the collection of other compensation except that the burden of proof shall be on the person disputing the finding or determination of the Rehabilitation Bureau." Rule 10958.

XXVI. Miscellaneous matters:

A. Continuing duty to serve medical reports (Rules 10608 - 10609, 10615 - 10616, 10622):

B. Service (Rules 10500 - 10520):

C. Lien procedures (Labor Code sections 4900 - 4906; Rules 10770 - 10772):

D. Commutation (Labor Code sections 5100 - 5105):

E. "Trash can Rule" (Rule 10395):

F. EDEX: The electronic data exchange at the WCAB permits inquiries of cases filed by injured workers by social security numbers and the filing of lien claims electronically. EDEX requires the use of interface software via the Internet at workcompcentral.com. Fees are charged by Division of Workers' Compensation for accessing their data (included in the workcompcentral.com EDEX price package). The Division of Workers' Compensation's database only goes back to approximately 1989 when the Division began using a computer system for all cases and the WCAB calendar. Cases before that time will show on EDEX only if they have been activated (calendared) at any time since 1989. No historical data has been inputted into EDEX.

The first article reviewed the history of workers compensation in CA, and provided an overview of the system framework. The second article reviewed benefits for temporary and permanent disability. Article three reviewed death benefits, penalties and provided an overview of benefit rates. The fourth part of the series started a review of WCAB procedures and the fifth article finished that review. The last article went over how medical issues are resolved.

Richard D. Owen is Sr. Staff Counsel with State Compensation Insurance Fund supervising a legal unit comprised of 16 litigation attorneys and 14 clerical support persons, and is responsible for training/educating attorneys for SCIF in Northern and Southern California. He can be reached at rdowen@scif.com.
Harold L. Greene is an Attorney at Law with the offices of Greene and Weinberger in Simi Valley, CA, and has been a certified specialist in workers' compensation law since 1974. He can be reached at haroldlgreene@hotmail.com.