Appealing a Decision by the California Workers' Compensation Appeals Board

If your workers' comp case went to a hearing in California and you're unhappy with the decision or award made by the appeals board judge, you can appeal the decision to the seven-member Workers' Comp Appeals Board (WCAB) in San Francisco.

Even if your workers' comp claim was accepted by your employer's insurance company, there are plenty of situations where you might have needed to request a WCAB hearing to solve a dispute in your case. For instance, maybe the insurance company refused to authorize surgery or you believe your temporary disability payments are too low given your average weekly wage.

In this article we'll explain why workers' comp claims are often denied, and how you can file an appeal.

Why Workers' Compensation Claims Are Denied

Workers' comp insurance companies deny claims for a number of reasons. Some insurance companies routinely deny initial workers' comp claims, betting that many injured workers will let the matter drop rather than pursue the claim.

Other insurance companies accept valid claims but will deny claims it doesn't believe it should have to cover.

Here are some legitimate reasons why a workers' comp clam can be denied:

• Your injury was not work-related (either it wasn't caused by activity on the job or it didn't happen during work-related duties).
• Your injury was due to your work for another company.
• You do not need medical treatment to recover for your injury.
• You do not need time off work because of your injury.

Requesting a Hearing After a Claim Denial

To get the insurance company to accept your workers' comp claim, you'll need to request a hearing before the Workers' Comp Appeals Board. Since your dispute with the insurance company is over whether your claim is "compensable" — that is, whether your injury is covered by workers' comp and whether the insurance company has liability for the claim, yours will be a "trial on the preliminary issues."

In order to request this hearing before a WCAB judge, you (or your lawyer) will need to file a form called a Declaration of Readiness to Proceed (DOR). Before you file this form, however, you need to have filed an Application for Adjudication of Claim, which is part of fling your official claim and gives you a workers' comp case number.

Priority Conference

If the insurance company has denied your claim because it doesn't believe your injury "arose out of employment" (AOE, in workers' comp terms) or that the injury did not happen "in the course of your employment" (COE), the WCAB judge will set an expedited conference date so that these AOE/COE issues can be resolved quickly and your claim can be accepted or denied.

If the insurance company has told you that your claim was denied because of AOE/COE issues, on your Declaration of Readiness to Proceed form, you'll check the boxes "Priority Conference" and "AOE/COE."

Pre-Trial Conference

After you submit the Declaration of Readiness to Proceed form, a pre-trial conference may be scheduled (if your denial wasn't based on AOE/COE issues—for instance, if the insurance company doesn't believe you need medical treatment or are entitled to temporary disability payments for time off work).

You should receive a notice of hearing that will tell you the date, time, and location of the conference. At the conference, the workers' comp judge will help you try to resolve the issue over whether the claim should be accepted or denied.

If the dispute can't be settled, the judge will then set the matter for trial — or, if the judge feels more information is needed before a trial can go forward, the judge will set up a "discovery plan" to come up with evidence to help determine the issues in your case. (In that case, the judge may also schedule a status conference to check on the sufficiency of the evidence discovered.)

Many disputes over whether a claim should be accepted or denied are settled at the pre-trial conference, and indeed most cases that get to this stage are accepted by the insurance company.

Denied After a Hearing: How to File a Workers' Compensation Appeal

There are several levels of appeal in the California workers' comp system.

Petition for Reconsideration

To file an initial appeal with the WCAB, you file a Petition for Reconsideration with the local district office of the WCAB where your case was heard. You have only 20 days from the date your received the decision or award from your local district office to appeal it (California Labor Code Section 5903). However, if the judge's decision was mailed to you rather than handed to you personally, you have 25 days from the date of the decision, which you'll find near the judge's signature.

You should file a Petition for Reconsideration (available from the California Division of Workers' Compensation website) only if you believe the evidence in your case doesn't support the judge's decision or award or if you have discovered new evidence (that you couldn't have discovered before your original hearing or trial).

If you are filling out your own Petition for Reconsideration, you'll see that it lists various reasons you could have for filing the petition; strike out the ones that don't pertain to you. In the space for a statement of facts, be sure to include every issue that you want the appeals board to consider, including why you disagree with the judge's decision and why the decision should be changed (you are asked to include points of law that prove your side).

Once you file the Petition for Reconsideration, the appeals board has 60 days to accept it or deny it. If the WCAB doesn't act within 60 days, consider the petition denied. If the appeals board accepts your petition for review, the board will next affirm, reject, or amend your original decision or award.

The appeals board will probably decide the appeal without an additional hearing, unless you have additional evidence, in which case the appeals board would schedule a new hearing. When the appeals board makes its decision on the petition, it will mail you a notice of its decision.

Writ of Review to State Appellate Court

If you (or your employer's insurance company) are unhappy with the WCAB's decision after the initial appeal, you (or the insurance company) can appeal the decision to the state appellate court for a "writ of review."

A petition for writ of review is filed with the court of appeal in the appellate district where you live. However, what the appellate court can do is limited: It can't reverse any findings of fact made by the appeals board; it can consider only whether the appeals board decision was reasonable, given the facts the appeals board had (California Labor Code Section 5950).

It is rare for an appellate court to overturn a decision by the appeals board, so consider whether it is worth your time to file an appeal with the appellate court.

If you do decide to file an appeal with the appellate court, you must file a petition for writ of review within 45 days of the petition for reconsideration's being denied or, if it was granted, within 45 days of the new decision or award being made.

California Supreme Court

If you are unhappy with the decision of the appellate court, technically you would then have the right to appeal your case to the California Supreme Court, but the state supreme court rarely will hear a workers' comp appeal.

Getting Legal Help

For help filing a Petition for Reconsideration to make an initial appeal, you can ask an information and assistance officer at your local district workers' comp office for help, or you can hire a workers' comp attorney to file the Petition for Reconsideration for you.

However, if you haven't been represented by an attorney until now, you may have a hard time finding an attorney to take your case at the appeal stage, unless you have a strong case.

If you've been though an initial appeal and you want to file a petition for writ of review with the appellate court or an appeal with the California Supreme Court, you'll need the help of a workers' comp attorney for sure—this is beyond the expertise of most information and assistance officers.