Appealing a Decision by the California Worker's Compensation Appeals Board

Understand what steps should be taken when appealing a workers' compensation denial in the state of California.

By , Attorney

If your workers' comp case went to trial (called a hearing in the California worker's comp system) at your local Worker's Comp Appeals Board (WCAB) -- because you weren't able to solve a dispute over your claim with your employer's insurance company -- and you're unhappy with the decision or award made by the appeals board judge, you can appeal the decision to the seven-member Worker's Comp Appeals Board (WCAB) in San Francisco. ("Worker's Compensation Appeals Board" refers to both your local district office where local cases are heard and the San Francisco-based appeals board.) 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.

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 Worker's 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 worker's 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 worker's comp attorney for sure—this is beyond the expertise of most information and assistance officers.

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