Home > Sanctions, Tactics and Strategy > Reconsideration or Removal? Part 1 of 3

Reconsideration or Removal? Part 1 of 3

California’s Workers’ Compensation system is one with a lot of gray areas and vague notions.  Rules of evidence and civil procedure apply, but not really.  Regulations govern the proper issuance of evaluator panels, but the Medical Unit does not have to follow them.  Defendants are entitled to due process, but only sometimes.  (For some of the harshest language on this point, I direct you to the case of Fidelity and Casualty Company of New York v. Workers’ Compensation Appeals Board [“If this case is a measure, the board — despite its sheaf of rules of practice and procedure — operates in an essentially structureless environment where the vigilance of the petitioning and responding parties provides the only insurance against the arbitrary and capricious denial of due process.”]).

Well, one truth that we can all agree on, one that is constant and unyielding, is this:  sometimes the Workers’ Compensation Judges get it wrong.  And when they do, it is up to the zealous among us to make sure these errors do not go unanswered – we must appeal!

The appeal takes the form of a Petition for Reconsideration.  An alternative is a Petition for Removal.  The former is from final orders, while the latter is from orders not considered final, but resulting in prejudice and irreparable harm.  (8 Cal. Code Regs. § 10843.)

Removal and Reconsideration are two very different procedures, but their distinction is often lost on attorneys who file both in order to cover their proverbial bases.

A petition for reconsideration is filed to seek the Workers’ Compensation Appeals Board’s intervention from a final order of a WCJ.  (Labor Code § 5900.)  A final order is one which determines any substantive right or liability of those involved in the case.  (Maranian v. Workers’ Comp. Appeals Bd..) Under Labor Code section 5910, the aggrieved party has 20 days from the service of the order to file its petition for one or more of the following reasons:

(a) The WCJ or the appeals board acted without or in excess of its, his or her powers;

(b) The order, decision, or award was procured by fraud;

(c) The evidence does not justify the findings of fact;

(d) Newly discovered information not previously available;

(e) The findings do not support the order, decision, or award.

(Labor Code § 5903)

One of the immediate effects of a petition for reconsideration (as opposed to a petition for removal) is that the filing of it suspends the order of the WCJ for 10 days.  (Labor Code § 5910.)  Furthermore, the WCJ is stripped of all jurisdiction 15 days after filing.  (8 CCR § 10859.)

This means that when a WCJ issues a non-final order, the case should proceed.  But once a petition for reconsideration is filed, under the Labor Code and the Code of Regulations, the order is suspended and the jurisdiction is taken away from the WCJ.

In other words, while an attorney is just “covering his bases,” the case grinds to a halt and a good amount of legal resources go into dealing with his or her petition.

But what about the process for a Petition for Removal?  I’m glad you asked: come back tomorrow morning for Part 2 of 3!

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