Calif. Practitioners: Don’t Forget to Exhaust All Administrative Remedies Before Appealing
LexisNexis Workers’ Compensation Law Center
By Reid L. Steinfeld, Esq. and Richard Boggan, J.D.
Petition for reconsideration (“Recon”): A legal process to appeal a decision issued by aworkers' compensation judge. Heard by theWorkers' Compensation Appeals BoardReconsiderationUnit, 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.
"...[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.
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