The defendants in the case of Earley v. WCAB are likely to ask the state Supreme Court to review the 2nd District Court of Appeal’s decision on the board's “grant for study” practice, according to information learned by the Law Offices of Bradford and Barthel.
The 2nd DCA issued a published decision in the case on Aug. 4, effectively nullifying the Workers’ Compensation Appeals Board’s practice of granting reconsideration to a petition for reconsideration, merely to study the matter further. A group of applicants' attorneys took the case to the appellate court because they were concerned that the practice created undue delays in hundreds of cases.
In the decision, the appellate court ruled that the board has to issue a decision within 60 days of a petition for reconsideration, but it does not have to be a “final ruling on the merits.” The WCAB does have the authority to issue a final decision at a later date, the appellate justices wrote.
What the 2nd DCA left unclear was what would happen to the 500-plus cases that were in the proverbial grant and study bullpen at the time of the 2nd DCA’s decision. And that, friends, is the rub.
One of the defendants in the case has informed Bradford and Barthel that it intends to file a petition for a writ of review with the California Supreme Court. As of the date of this article, no petition has been filed, but the parties have until Sept. 13, 2023, to do so.
The parties want clarification on what happens to the backlog of cases.
After all, these are cases over which a party felt strongly enough to file a petition for reconsideration. Regardless of what side of the aisle you’re on, attorneys and clients typically don’t file petitions for reconsideration for frivolous reasons (although we do imagine a WCAB staff attorney cynically laughing at this sentence right now).
Generally speaking, when appellate courts issue a decision that retroactively impacts cases, they have to explain with specificity what will happen to those cases. Here, the 2nd DCA’s opinion was ambiguous on that point, and the parties want more.
So grab your popcorn, folks, because this one does not appear to be over just yet. Of course, we do reserve the right to be wrong; Sept. 13 could very well pass and the parties could change their minds about that petition for review, but that appears unlikely at this time.
As the late journalist Paul Harvey would say at the start of his syndicated radio program, “And now, the rest of the story.” Here’s to hoping that the state Supreme Court gives us the rest of the story for those 500-plus cases.
John P. Kamin is a workers’ compensation defense attorney and equity partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. Louis Larres is a partner and area managing attorney at Bradford and Barthel’s Fresno office. This entry from Bradford & Barthel's blog appears with permission.