A worker injured on the job in California has grounds to appeal a decision by a workers’ compensation judge if there is new evidence, if the evidence does not support the decision, if there was fraud by the other side, or if the decision will cause great harm.
The appeal is called a Petition for Reconsideration or Petition for Removal depending on the reason. Both are decided by a three-judge panel.
A Petition for Reconsideration is filed when there is a decision by a judge at trial. An example of this is a decision that denies or gives an injured worker money or treatment.
A Petition for Removal is filed when there is a decision by a judge before trial related to evidence, discovery, hearing time and location, or similar issues. An example is a decision that orders an injured worker to go to a medical appointment.1
If an injured worker files the wrong kind of petition, it will be dismissed.
An injured worker has 20 days to respond to a decision of a judge by filing the correct petition. There is an additional five days to respond if the decision is received in the mail.
If an injured worker loses the petition, the next step is to file a Writ of Review with the California Court of Appeals. If an injured worker loses at the court of appeal, the final step is to appeal to the California Supreme Court.
In this article our California personal injury lawyers will explain how to get through the appeal process by knowing:
- 1. Which Petition to file to appeal a California Workers’ Compensation case
- 2. Rules for filing any Petition in a California Workers’ Compensation Case
- 3. How to appeal to the next level with a Writ of Review
- 4. Putting together a winning appeal
Under certain circumstances, a worker injured on the job in California can appeal a decision by a workers’ compensation judge.
1. Which Petition to file to appeal a California Workers’ Compensation case
An injured worker or insurance company that does not agree with a decision made at a workers’ compensation trial can appeal that decision.2
There are two options available if an injured worker believes a judge has made the wrong decision:
- Petition for Reconsideration
- Petition for Removal
The type of petition an injured worker can file depends on the kind of decision made by the judge.
1.1. Petition for Reconsideration
To understand a Petition for Reconsideration, it’s important to know how a California workers’ compensation case ends.
If an injured worker agrees with the insurance company on all the issues in a claim, there is no need for a judge to make a decision. Instead, there will be a settlement.
A settlement in a workers’ compensation case is an agreement on an injured workers’ benefits including temporary disability, permanent disability and medical care.
A settlement can be reached by a Stipulation with Request for Award or a Compromise and Release.
If the injured worker can’t reach an agreement with the insurance company on any issue in a claim, a judge will have to make the decision. This is done through a trial.
The judge’s decision at trial on these benefits is final. It can’t be brought up again unless the injured worker files Petition for Reconsideration.
Example: Kevin thinks the insurance company should have given him more money for temporary disability for the wages that he would have earned if he were not injured. Specifically, he says he should be paid from April 10th to September 10th because he couldn’t work during that time due to his injury and earned no money.
There is a trial on this issue. Kevin loses and is denied temporary disability from April 10th to September 10th. Kevin must file a Petition for Reconsideration if he wants temporary disability benefits during that time or lose that right forever.
Issues to Raise in a Petition for Reconsideration
Any person that files a Petition for Reconsideration must state that the judge’s decision is wrong because it falls into one of the following five categories:
- the judge did not have the power to make the decision
- the decision is fraudulent
- the evidence does not support the conclusions
- there is new evidence that could not have been discovered before
- the decision is not justified by the evidence3
If the issue is the evidence as in 1, 3, or 5 the Petition must state:
- Specifically in detail how the evidence fails to justify the judge’s findings4
If the issue is fraud or new evidence as in 2 or 4, the Petition must state:
- the names of witnesses to be produced;
- a summary of the testimony to be elicited from the witnesses;
- a description of any documentary evidence to be offered;
- the effect that the evidence will have on the record and on the prior decision; and
- as to newly discovered evidence, a full and accurate statement of the reasons why the testimony or exhibits could not reasonably have been discovered or produced before submission of the case.5
Failure to Raise Issues in a Petition
A Petition for Reconsideration must use information that was part of the trial to make an argument that the decision was wrong.6 The petition must also state the area of law that the judge applied in the wrong way.7
A petition that does not take these steps will be denied.
Example: Jeremy disliked the judge’s decision in his case. He filed a Petition saying that the judge wasn’t fair and that his supervisors lied about his condition.
Jeremy’s Petition was denied because he didn’t say what information in the trial wasn’t fair or what specifically the supervisors lied about. He also didn’t say what area of law he meant when he said the decision wasn’t fair.
1.2. Petition for Removal
A Petition for Removal is filed when there is a decision by a judge that is not made at trial. This may affect:
- whether an injured worker must attend a medical appointment
- when a hearing takes place and who has to attend
- whether specific medical records must be given to the insurance company
- any other issue where there is not a decision at trial.8
Example: Before trial a judge orders Kyle to answer questions from the insurance company about his history of drug use.
Kyle does not want to answer these questions and doesn’t feel they are relevant to his claim.
Kyle files a Petition for Removal so that a three-judge panel can decide the issue.
The panel decides that Kyle does not have to answer these questions. Answering them would harm Kyle’s case and be unfair.
Issues to Raise in a Petition for Removal
The issues in a Petition for Removal are different than the issues in a Petition for Reconsideration. To file a Petition for Removal the filer must show:
- The original decision is prejudicial
- The original decision will result in great harm
- Reconsideration is not the correct action9 10
The Petition for Reconsideration and Petition for Removal must be filed under oath
2. Rules for filing any Petition in a California Workers’ Compensation Case
The Petition for Reconsideration and Petition for Removal must be:
- filed under oath11 12
- sent to the other parties13 14
- filed within 20 days of the judge’s decision,15 16 with an extra five days to file if the decision was mailed, meaning a total of 25 days to file.17
- filed at any Workers’ Compensation Appeals Board District Office.
When one side files a Petition for Reconsideration, the other side has 10 days to file a response.18 This is extended by 5 days if it is mailed to them.19
After the Petition for Reconsideration is filed, the judge that made the original decision has 15 days to change his or her decision.20 21 In that case, the judge may want to take another look at the issue and will set the case for a new hearing.
(put in graphic time milestones – 25 days to file (20+5), 15 days to respond (10+5), 15 days for judge)
Example: Erin is a police officer who files a workers comp case in California. She gets a decision on her case in the mail on May 30th. She appeals the decision on June 20th because she feels the judge did not give her all the permanent disability she felt she deserved. This is within 25 days.
Her Petition for Reconsideration states the reasons why she thinks she should get more permanent disability. She mails a copy to a district office and to the insurance company
On July 2nd the insurance company responds to her petition. It is within 15 days.
The judge mails out a notice on July 3rd that he is withdrawing his original decision and sets the case for a hearing on July 29th.
The three-judge panel will not need to respond to Erin’s Petition because the original decision no longer stands.
2.1. The Response to a Petition
After a Petition for Reconsideration has been filed the Workers’ Compensation Board may:
- Dismiss it
- Deny it
- Grant it
Dismiss of a petition
Example: Heather does not like the result in her case and files a Petition for Reconsideration. Unfortunately, she waits 27 days to file her Petition. Her Petition is dismissed because she filed it too late. This decision is now final.
Denial of a petition
Example: The insurance company in Nicole’s case files a Petition for Reconsideration after the judge awards Nicole $55,000 in permanent disability.
The Appeals Board judges deciding the petition do not agree with the insurance company’s argument and denies the request to change the decision.
If the insurance company does not take the case to the next higher level, Nicole is entitled to her $55,000.
Granting of a petition
Example: Jeremy did not like the judge’s decision finding that he did not have a work injury. Jeremy files a Petition for Reconsideration.
The Appeals Board judges deciding Jeremy’s Petition finds that there were mistakes in the judge’s decision.
The case was sent back for further evidence. The doctor that evaluated Jeremy needs to write a new report before a decision can be made by the judge.
Example: Alternatively, in Jeremy’s case the Appeals Board judges could have issued a decision that Jeremy did have a work injury.
In this situation there is nothing further for the trial judge that originally heard the case to do on this issue.
3. How to appeal to the next level with a Writ of Review
The only other courts that can hear a workers’ compensation appeal are the California Supreme Court or California Court of Appeal.22
Taking a case to the next level above the Petition for Reconsideration filed in the Workers’ Compensation Appeals Board is called a Writ.23
A Writ can only be filed after a Petition for Reconsideration.24
A Writ must be filed within 45 days.25
Any issue in the Writ must have been in the Petition for Reconsideration.26
4. Putting together a winning appeal
Filing any kind of appeal requires understanding time deadlines, evidence, and legal arguments.
Failing to address all these issues can lead to an injured working losing important rights in their case.
For additional help…
Contact us for help with your case.
Our legal team can help you appeal any adverse findings. We practice throughout California. For cases in Nevada, please see our article on how to appeal denials of workers compensation benefits in Nevada and how long does a workers’ comp appeal take?
LEGAL REFERENCES:
- Avalos v. Staffchex, 2011 Cal. Wrk. Comp. P.D. LEXIS 564
- Cal. Lab. Code § 5900(a)
- Cal. Lab. Code § 5903
- Cal. Code Regs., tit. 8, § 10852
- Cal. Code Regs., tit. 8, § 10856
- Cal. Code Regs., tit. 8, § 10842
- Cal. Code Regs., tit. 8, § 10846
- Avalos v. Staffchex, 2011 Cal. Wrk. Comp. P.D. LEXIS 564
- Cal. Code Regs., tit. 8, § 10843(a)
- Cal. Lab. Code § 5310
- Cal. Code Regs., tit. 8, § 10843(b)
- Cal. Lab. Code § 5902
- Cal. Code Regs., tit. 8, § 10843(c)
- Cal. Lab. Code § 5905
- Cal. Code Regs., tit. 8, § 10843
- Cal. Lab. Code § 5903
- Cal. Code Regs., tit. 8, § 10507(a)
- Cal. Lab. Code § 5905
- Cal. Code Regs. tit. 8 § 10507(a)
- Cal. Code Regs., tit. 8, § 10859
- Cal. Code Regs., tit. 8, § 10843(d)
- Cal. Lab. Code § 5955
- Cal. Lab. Code § 5950
- Cal. Lab. Code § 5901
- Cal. Lab. Code § 5950
- U.S. Auto Stores v. Workers’ Comp. Appeals Bd., (1971) 4 Cal. 3d 469