The 2nd District Court of Appeal has now completed oral arguments and is considering final briefing in the dispute over whether the Workers’ Compensation Appeals Board’s “grant for study” process is constitutional.

John P. Kamin

The appellate court held oral arguments in the case of Earley et al. v. WCAB, No. B318842, on March 29, and the case has now entered the supplemental briefing stage.

The appellate court said on its website that once supplemental briefing is completed, the case will be submitted for decision. The first supplemental brief was filed by the petitioning applicants on May 15, and more briefs are sure to follow in the next two months.

The case arose in 2022 when multiple applicants' attorneys filed a petition challenging the “grant for study” practice as unconstitutional.

To be clear, the “grant for study” refers to the following situation:

• A trial judge issues a decision.
• A party who is unhappy with the decision files a petition for reconsideration with the WCAB.
• The board issues a brief decision granting reconsideration but states that it needs more time to review the case before issuing a decision. (Note: By granting reconsideration, the board is merely granting it to study the matter further; no decision has been issued on whether the relief sought in the petition is appropriate.)
• A long time (sometimes years) before a decision on the petition for reconsideration is issued.

However the appellate court rules, it appears that hundreds of cases could be impacted by the ruling. According to WorkCompCentral and the briefs filed in the case, it appears that at least 500 cases could be affected by the appellate court’s decision.

I am loath to predict the appellate court’s options because appellate justices have a long history of creative solutions and interpretations that nobody would have ever thought of. That disclaimer aside, two of the potential options appear to be:

• The appellate court could say that the grant for study process was constitutional, leaving those cases as they are — awaiting a decision on reconsideration.
• The appellate court could say that the grant for study process was unconstitutional and vacate all of those grant for study orders. That could arguably create an avalanche of complex cases that suddenly need decisions from the WCAB.

Regardless, one of the many root causes of this was the fact that the WCAB was relatively understaffed for years and the COVID-19 pandemic certainly didn’t help things. To put the icing on the cake, the 60-day time frame to issue a decision on reconsideration pursuant to Labor Code 5909 may not be so realistic in cases featuring thousands of pages of exhibits, multiple case numbers and complex legal arguments.

With that in mind, the real solution to the grant for study situation and the problems that led to it lies with the state Legislature. Perhaps the 2nd DCA’s decision will help call attention to that.

California lawmakers have hinted at an omnibus reform bill after Gov. Gavin Newsom’s successful 2022 reelection. Well, if an omnibus reform bill is in the works, it would behoove the state to consider expanding the WCAB’s operations, commissioners and support staff. And if that is still unlikely to help the WCAB meet LC 5909’s 60-day deadline, then maybe lawmakers need to expand LC 5909’s deadline to 90 days or even 120 days.

Conclusion

Ironically, it’s been quite popular for state lawmakers to propose all kinds of bills that would expand workers’ compensation benefits while paying little attention to the agency that decides whether those benefits are warranted. If one reads the briefs filed in the Earley case, it’s clear that it’s time for our lawmakers to show some more budgetary and legislative love to our friends at the board. Hopefully, the 2nd DCA’s impending decision will prompt some action on the legislative front.

John P. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.