Workers' comp attorneys welcome review of appeal delays

Workers' compensation attorneys welcomed the California Supreme Court's decision to review the issue of delays at the Workers' Compensation Appeals Board. Three attorneys interviewed on Wednesday expressed optimism, noting that a ruling could provide much-needed clarity and resolution for many pending cases.

"I'm thankful to the Supreme Court for granting cert," said Eric J. Danowitz, an attorney with Mokri Vanis & Jones LLP in Newport Beach, who is not involved in the case the court agreed to hear. "I think the question being asked to the Supreme Court is very important to the efficient and expedited litigation of workers' compensation cases. A definite answer on the process of granting study and uniformity of whether or not the practice should be continued to be allowed in any format is necessary."

The court will take on the question of so-called "grant for study" case extensions. These occur when the board grants a request from employers to further study the facts behind a case, something some attorneys say has often led to months or years of delays in decisions.

Several recent appellate court decisions have found these delays violate the California Labor Code. The case the court agreed to take is one of two appellate court rulings ordering the board to rescind orders granting reconsideration of petitions granted more than 60 days after they were filed.
The court sent a letter to the counsel on Dec. 11 informing them it will hear arguments in one of these cases, Mayor v. Workers Compensation Appeals Board, S287261 (Cal. S. Ct., filed Oct. 7, 2024). The board did not respond to emails seeking comment.

This is not the appeal two workers' compensation attorneys filed directly to the Supreme Court last month asking it to direct the board to issue final decisions in 11 cases delayed by grant to study orders. But one of the attorneys who filed that case -- Alegria v. Workers' Compensation Appeals Board of the State of California, S287740 (Cal. S. Ct., filed Nov. 4, 2024) -- said he expects the court will rule on the important underlying issues.

"We hope that they will provide finality with respect to the question of the board's conduct in delaying decisions in cases where they have previously issued grant for study orders," said El Segundo-based Charles R. Rondeau.

He added, "We remain confident that our arguments in Alegria are correct, and we hope for a favorable decision."

Rondeau said there may be procedural reasons why the court took Mayor and not his clients' case. This includes the fact that two of the other recent appellate decisions he and his co-counsel, Santa Ana-based Thomas F. Martin, referenced in their petition were decided in different districts of the 2nd District Court of Appeal, and that none of the litigants challenged them. The court remanded the Allegria case to the 2nd District as well, taking the 1st District decision in Mayor as the vehicle to decide the Labor Code questions.

"They're going to take up the important question here: Do they have authority if they don't issue a decision within 60 days?" said Sure S. Log, who lives in New Zealand but is counsel with the El Segundo office of Michael Sullivan & Associates LLP.

Log said the court also left the appellate decisions in place as binding law for the time being. Both he and Danowitz said they are advising their clients to proceed as if the 60-day deadline is binding until the Supreme Court tells them otherwise.

Log also blogs about workers' compensation. He's written this year about how the board has long relied on a three-decade old court decision.
Shipley v. Workers Compensation Appeals Board (1992) 7 Cal. App. 4th 1104 concerned a worker whose file was lost. That decision allowed the board to extend cases in which there was an inadvertent error and still consider the merits. If the board loses the ability to rely on Shipley, he said, that could create further problems.

"We've got 30 years of cases where they've issued decisions outside of the 60 days," Log said. "What happens to all those cases? There are some serious issues that are going to be resolved."