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APPEALS: RECONSIDERATION & WRITS

Appeal From Final Order of WCJ Final Order of WCAB If Appellate Summary Writ Denial Appellate Opinion & Disposition if Writ Granted
Pleading Petition for Reconsideration Petition for Writ of Review Petition for Review Petition for Review
Where to File In EAMS, etc.: any district or WCAB SF Office: see 8 CCR §10840 Court of Appeal-appellate district where petitioner resides or the Supreme Court: LC §5950 Supreme Court Supreme Court
When to File 20 days from service: LC §5903 + 5 days for mailing: CCP §1013 45 days from issuance: LC §5950; No extension for mailing except where recon order never received. 10 days from writ denial: Rule 8.500(e) 40 days: finality is 30 days after opinion filed + 10 days to file after finality: Rules 8.264(b); 8.500(e)
Forum Rules Reconsideration rules See Appellate Rules of Court and local rules of court. Particularly see Review of WCAB cases. See Rules 200, et seq.; Workers’ compensation cases are governed by Rule 8.495. Supreme Court Rules
Comments Grounds for review: LC §5903; must be verified. Scope of review limited by LC §5952; See service under LC §5954. Must be verified. See McDonald's Tips See McDonald's Tips

Standard of review: "When a workers' compensation decision rests on the Board's erroneous interpretation of the law, the reviewing court will annul the decision. The Board's conclusions on questions of law are reviewed de novo. When the reviewing court is asked to interpret and apply a statute to undisputed facts, the review is de novo.  When interpreting a statute, the reviewing court's purpose is to effectuate the Legislature's intent." (Citations omitted) Benson v. WCAB (2009) 170 Cal.App.4th 1535.

"We may not and do not reweigh the evidence nor decide disputed questions of fact, nor resolve conflicts in the evidence. This the Board is empowered to do....We must determine whether the evidence, when viewed in the light of the entire record [citations omitted] supports the award....[E]ven where undisputed operative facts meet the statutory basis of entitlement, a court of review must, as a part of the review in light of the entire record, examine other facts which may seem statutorily irrelevant or inoperative. Such facts may well be relevant and important when the result is examined for fairness, reasonableness and proportionality in the overall scheme of the law and the purposes sought to be accomplished by that law." Universal City Studios, Inc. v. WCAB (1979) 99 Cal. App. 3d 647

Labor Code §5950: Any person affected by an order, decision, or award of the appeals board may, within the time limit specified in this section, apply to the Supreme Court or to the court of appeal for the appellate district in which he resides, for a writ of review, for the purpose of inquiring into and determining the lawfulness of the original order, decision, or award or of the order, decision, or award following reconsideration. The application for writ of review must be made within 45 days after a petition for reconsideration is denied, or, if a petition is granted or reconsideration is had on the appeal board's own motion, within 45 days after the filing of the order, decision, or award following reconsideration.

Labor Code §5952: The review by the court shall not be extended further than to determine, based upon the entire record which shall be certified by the appeals board, whether:
   (a) The appeals board acted without or in excess of its powers.
   (b) The order, decision, or award was procured by fraud.
   (c) The order, decision, or award was unreasonable.
   (d) The order, decision, or award was not supported by substantial evidence.
   (e) If findings of fact are made, such findings of fact support the order, decision, or award under review.
   Nothing in this section shall permit the court to hold a trial de novo, to take evidence, or to exercise its independent judgment on
the evidence.

Labor Code §5953: “The findings and conclusions of the appeals board on questions of fact are conclusive and final and are not subject to review. Such questions of fact shall include ultimate facts and the findings and conclusions of the appeals board. The appeals board and each party to the action or proceeding before the appeals board shall have the right to appear in the review proceeding. Upon the hearing, the court shall enter judgment either affirming or annulling the order, decision, or award, or the court may remand the case for further proceedings before the appeals board.”

Liberal Construction: Labor Code section 3202 imposes on the courts and on WCAB an obligation of liberal construction in order to extend protection to injured employees.

Stay of Proceedings: Labor Code §5956 provides: “The filing of a petition for, or the pendency of, a writ of review shall not of itself stay or suspend the operation of any order, rule, decision, or award of the appeals board, but the court before which the petition is filed may stay or suspend, in whole or in part, the operation of the order, decision, or award of the appeals board subject to review....”

See, too, Workers' Compensation Appeals Board and Citations.

Label Item Links Comments
Labor Code Labor Code §§5900-5911 Petition for Recon  
  Labor Code §5903: Time to file and grounds for reconsideration
Time to file
 
Labor Code §§5950-5956 Writ of Review   
Regulations/Rules Reconsideration Reconsideration  
  §10842. Contents of Petitions for Reconsideration, Removal, and Disqualification and Answers 8 CCR §10842  
§10848. Supplemental Petitions 8 CCR §10848
Cases See above    
Forms Petition for Reconsideration Recon form  
Websites    
Practice Tips

Follow the KISS rule: keep it short and simple.

Note that an "electronically transmitted document shall be deemed to have been received by EAMS when the electronic transmission of the document into EAMS is complete. A document received electronically after 5:00 pm of a court day (i.e., Monday through Friday, except designated State holidays) shall be deemed filed as of the next court day." 8 CCR §10206.3

   
Articles California EAMS: Tips for Filing Petitions for Reconsideration by Colleen Casey
 
Filing Petitions for Reconsideration  
Magazine Articles Contemplations and Tips for Filing an Appellate Brief
by Michael McDonald, Esq.
Contemplations and Tips for Filing an Appellate Brief
 
Roundtable    
Miscellaneous      

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