WorkersCompensation.com's CompNewsNetwork: Calif. Practitioners: Don’t Forget to Exhaust All Administrative Remedies Before Appealing

Calif. Practitioners: Don’t Forget to Exhaust All Administrative Remedies
Before Appealing
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LexisNexis Workers’ Compensation Law Center on 21 October, 2009 01:32:00
 
By Reid L. Steinfeld, Esq. and Richard Boggan, J.D.
Petition for reconsideration (“Recon”): A legal process to appeal a
decision issued by a workers' compensation judge. Heard by the Workers'
Compensation Appeals Board Reconsideration Unit, a seven-member, judicial body
appointed by the governor and confirmed by the Senate.
It is common knowledge that a party to an action before the Workers’
Compensation Appeals Board has the right to Petition for Reconsideration from a
final order by a Workers' Compensation Judge.  But what does not seem to be
common knowledge is that once a Petition for Reconsideration is granted, the
aggrieved party may file a “Petition for Reconsideration” on the granting
of the reconsideration – sort of a second bite of the apple.
By example: A loses at the trial level. A files a Petition for Reconsideration.
The Reconsideration is granted. Now B is the newly aggrieved party and has
standing to file a Petition for Reconsideration from the Appeals Board granting
Reconsideration, without filing a writ.
Labor Code § 5900. Petition for Reconsideration
(a) Any person aggrieved directly or indirectly by any final order, decision,
or award made and filed by the appeals board or a workers' compensation judge
under any provision contained in this division, may petition the appeals board
for reconsideration in respect to any matters determined or covered by the
final order, decision, or award, and specified in the petition for
reconsideration. The petition shall be made only within the time and in the
manner specified in this chapter.
Ramsey v. Workers' Comp. Appeals Bd., 18 Cal. App. 3d 155, 95 Cal. Rptr. 558,
1971 Cal. App. LEXIS 1370, 36 Cal. Comp. Cas. (MB) 382 (Cal. App. 4th Dist.
1971):
"...[A]s the Board noted in its decision, ordinarily a person may not petition
for reconsideration of an order denying reconsideration. If one party prevails
in the original  hearing and on rehearing the other party prevails, the first
party may petition for rehearing of the order made on rehearing because he has
for the first time become the aggrieved party. (Goodrich v. Ind. Acc. Com., 22
Cal.2d 604, 611 [140 P.2d 405].) In the instant case the Board did not grant
petitioner's request for reconsideration.”
Since workers’ compensation is an administrative proceeding, one should
exhaust all administrative remedies, even if it’s not mandatory, before
taking the case to the Court of Appeal.  Filing a recon of a recon could be a
strategic, economical and judicial advantage for the petitioner. Historically
very few writs are granted, sometimes for reasons other than the substantive
law. So one should look to all potential rights and remedies before
automatically taking a case up on a writ.
This post is provided by LexisNexis Workers’ Compensation Law Center.
(c) Copyright 2009 LexisNexis Workers’ Compensation Law Center