COURT OF APPEAL STRIKES DOWN WCAB “GRANT AND STUDY” FORMAT

September 2023

By John Kamin, Louis Larres, Bradford & Barthel

The Workers’ Compensation Appeals Board must stop its grant-for-study practice, but is not required to issue a final decision on the merits within 60 days of a petition for reconsideration either, the 2nd District Court of Appeal ruled in a published decision.

The appellate court issued a decision in the case of Earley v. Workers’ Comp. Appeals Bd. (No. B318842) that appeared to find a middle ground of a dispute over whether the WCAB’s “grant-for-study” practice was legal. The term “grant-for-study” refers to cases where:

• A trial judge issues a decision.
• A party who is unhappy with the decision files a petition for reconsideration with the Appeals Board.
• The Appeals Board issues a brief decision granting reconsideration, but states that they need more time to review the case before issuing a decision. (Note: By “granting reconsideration,” they are merely granting it to study the matter further – no decision has been issued on whether the relief sought in the petition is appropriate or not.)
• A long time (sometimes multiple years) before a decision on the petition for reconsideration is issued.

After about a year of briefing, oral arguments, and other procedural arm-wrestling, the appellate court determined that the grant-for-study process is inappropriate purely for the purpose of giving the Appeals Board commissioners more time to rule on a contested issue in a petition for reconsideration. The Court determined the WCAB is statutorily required to issue a decision within 60 days. However, the Court tempered that obligation noting the decision does not have to be a “final decision” on the merits.

In other words, the Board can grant reconsideration, but then later issue a decision on the merits “after reconsideration.” (If that sounds familiar, it should). As such, the Court determined “the Board is not required to issue a final ruling on the merits within 60 days.”

The decision also awarded attorney fees and costs to the plaintiffs, for their partial success in challenging the grant-for-study practice.

ANALYSIS

The Court of Appeal appears to have found the middle ground by:

• Nullifying the grant-for-study practice
• But outlining that the WCAB isn’t required to issue a decision on the merits within 60 days

While this appears to be a pyrrhic victory for the plaintiffs who sought to dispute the grant-for-study practice, it is worth noting the decision does have plenty of language encouraging the WCAB to utilize all its statutory options when evaluating petitions for reconsideration and crafting a remedy.

In other words, the decision appears to favor greater transparency by urging the Appeals Board to write more summaries and analysis in their panel decisions, while still allowing the commissioners the option to use additional time beyond 60 days to make a decision on the merits.

As such, while the decision may not change much in terms of the timing of decisions, it appears Tuesday’s ruling will probably result in more detailed decisions when granting reconsideration within 60 days of a petition for reconsideration, which permits the Board to take additional time to make a final decision on the merits.

The decision also did not discuss how the Board is to deal with the existing backlog of cases where an order granting for further study has issued, but where the Board has yet to issue a final decision on the merits. Retroactive application of judicial determinations tends to be the general rule of thumb. So, it remains to be seen how the Board will deal with that backlog in light of this decision.

The decision is a rarity of sorts, as appellate courts typically don’t like telling underlying administrative courts how to run their house except for when absolutely necessary. Generally speaking, appellate courts in most jurisdictions prefer deferring to administrative courts and bodies, unless doing so would be an absolute miscarriage of justice.

Time will tell how the WCAB and workers’ compensation practitioners interpret the ruling, and of course, this story is not complete yet – the plaintiff applicants still have the option of filing an appeal of the 2nd DCA’s decision to the California Supreme Court. In the meantime, if you or a practitioner you know has a decision that was subjected to the “grant-and-study” procedure, it may be worth keeping a close eye on your mailbox during the next 60 days.