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Michele Earley, Ashraf Gorgi, Hyun Sook Lee, Roman Hernandez Aguilar, and Jose Flores Campos were each applicants in a workers’ compensation proceeding. In each case one of the parties had filed a Petition for Reconsideration of a ruling issued in their case.

By statute, the WCAB must act upon such petitions within 60 days. To satisfy this requirement, the Board often grants petitions for purposes of further study without first deciding whether reconsideration is actually warranted. Later – sometimes many months after the petition for reconsideration was filed – the Board issues a decision on the merits affirming, reversing, or modifying the ruling at issue.

In each of these five cases, the Board issued a grant-for-study order. The Petitioners’ grant-for-study orders arose in different situations with different timelines. The cases are different but the Board’s orders were exactly the same. The uniform language of these orders reveals a standard form and not particularized analyses.

The Board explained its grant-for-study procedure. It generally tries to identify significant cases or those requiring en banc review, and cases involving complicated or novel issues. It was able to trace the history of this practice to the 1950’s; an earlier origin existed but is lost in time. The Board surmised the grant-for-study procedure “evolved naturally” from 1913 statutes that allowed the Industrial Accident Commission (a precursor to the Board) either to grant or to deny rehearing and thereafter to issue a decision after rehearing.

According to the results of a public records request that Petitioners served on the Board, as of November 2, 2021, there were 543 workers’ compensation cases awaiting a final decision in which the Board had issued a grant-for-study order between October 1, 2018 and October 1, 2021. The time between the filing of the grant-for-study orders and the Board’s final decisions ranged from five to 21 months.

The Court of Appeal issue a writ of mandate requiring the Board to cease its grant-for-study procedure and to comply with the statute when granting reconsideration in the published case of Earley v. Workers’ Comp. Appeals Bd. B318842 (August 2023).

Labor Code section 5908.5 requires the Board to explain its reasons for granting reconsideration and to identify the evidence supporting its decision. The Court simply said that the “statute is clear. The Board must obey it.”

At oral argument, the Board assured the Court of Appeal that it carefully reviews the cases in which it decides to issue a grant-for-study order. A careful review is not enough. Section 5908.5 requires the Board to go a step further and to explain in its order granting reconsideration why it made the decision to grant reconsideration based upon the evidence in the particular case.

However the Court of Appeal noted that “The Board’s grant-for-study orders in these cases fell short. These orders gave no reason for granting reconsideration other than a boilerplate statement that further study is necessary ‘based upon our initial review of the record.’ A rubber stamp could have authored these statements.

“The Board does not claim that its standard grant-for-study order complies with section 5908.5. Rather, its defense of the grant-for-study procedure focuses on the long tenure of the procedure and the claimed impossibility of issuing a reasoned order in all cases. But a long-standing and incorrect procedure remains incorrect.”

The Board must comply with section 5908.5 when it orders reconsideration. That is, the Board must state in detail the reasons for its decision and the evidence supporting it. Those reasons must be based on the grounds identified in section 5903. The Board need not, however, issue a final order within 60 days. The review necessary to support a decision to grant a petition for reconsideration within 60 days does not involve the same burden as the preparation of a final ruling. The Board must engage in the analysis necessary to permit a reasoned decision as to whether reconsideration is warranted based upon the factors identified in section 5903 and the evidence in the particular case. The Board then can decide whether to affirm, to modify, or to vacate the order at issue after further consideration and a more thorough review of the record.”

Petitioners met the statutory requirements for an award of attorney fees under Code of Civil Procedure section 1021.5. However the Court of Appeal reduced the requested $221,554.50 in fees by one half because Petitioners’ success was only partial.

“Petitioners successfully challenged the lawfulness of the Board’s current grant-for-study practice, resulting in an order that will require the Board to comply with section 5908.5 when it grants reconsideration. They did not achieve their aim of requiring the Board to issue final rulings on petitions for reconsideration within 60 days.” The Court of Appeal also awarded Petitioners their out-of-pocket appellate costs, which they identify as $7,891.63.