Reconsideration and review
| Author | David L. Pollak/Roger A. Tolman, Jr./Monika R. Reyes |
| Pages | 1291-1350 |
RECONSIDERATION,
REVIEW
23-1
CHAPTER 23
RECONSIDERATION AND REVIEW
I. PETITION FOR RECONSIDERATION
§23:01 General Discussion
§23:02 Party Must Be “Aggrieved” to Have Standing
§23:03 Reconsideration May Only Be Sought From Final Order
§23:04 Time Limit: Within 20 Days of Valid Service
§23:05 Filing
§23:06 Service of Petition
§23:07 Answer to Petition for Reconsideration
§23:08 Judge’s Power to Amend Decision in Lieu of Reconsideration Petition
II. GROUNDS FOR RECONSIDERATION
§23:20 Action in Excess of Powers
§23:21 Fraud
§23:22 Findings Not Justified by Evidence
§23:23 Newly-Discovered Evidence; Fraud; Death of Applicant While Petition Is Pending
§23:24 Decision Unsupported By Findings
§23:25 Compare Reopening
III. FORM OF PETITION
§23:30 Board Form; Format Requirements
§23:31 “Skeleton Petitions” Subject to Dismissal or Denial
§23:32 No Delay for Transcripts
§23:33 Signature and Verification of Petition; Petitions Filed by Non-Attorneys
§23:34 Matters Not Raised at Trial or on Reconsideration Deemed Waived
§23:35 Practice Tips for Maximizing Success on Reconsideration
IV. PROCEDURES ON RECONSIDERATION; WCAB ADMINISTRATION; OTHER BOARD POWERS AND DUTIES
§23:40 Introduction
§23:41 WCJ May Modify or Rescind Order Within 15 Days; No Jurisdiction to Act Thereafter
§23:42 WCJ’s Report
§23:43 Answer to Petition; Supplemental Petitions
§23:44 Assignment to Panel
§23:45 En Banc Decisions
§23:46 The Appeals Board
§23:47 Deputy Commissioners
§23:48 Board Staff; Communications with the Board on Procedural Matters
§23:49 Board Action
§23:50 Time Limits for Board Action on Petition for Reconsideration
§23:51 Reconsideration on Board Motion
§23:52 Immediate Final Decisions
§23:53 Grants With Further Action
RECONSIDERATION,
REVIEW
California Workers’ Compensation 23-2
§23:54 Special Procedures Applicable to Arbitration and “Carve-Out” Proceedings
§23:55 Other Appeals Handled by WCAB: Disqualification Petitions; IBR & IMR Disputes; MPN Certification
§23:56 Other WCAB Functions; Discipline of Non-Attorney Hearing Representatives:
Collection of Sanctions; Rulemaking Power
V. BOARD POWERS AND DUTIES ON RECONSIDERATION
§23:60 To State Evidence and Reasons
§23:61 Summary Denials of Reconsideration; “Adopt and Incorporate”
§23:62 Great Weight to WCJ’s Findings; Substantial Evidence
§23:63 Broad Power to Make Its Own Findings
§23:64 Compare Where Witness Demeanor Unimportant
§23:65 No Arbitrary Grant
§23:66 Adequate Record and Case File: Duty to Develop Record
§23:67 Power to Grant Where Conflict
§23:68 Grants in Multi-Party Cases
§23:69 Power to Rule on Constitutionality of Labor Code Provision and Validity of Regulations
§23:70 Sanctions for False, Frivolous, Noncompliant or Intemperate Petitions
§23:71 En Banc Decisions: May Not Be Used to Create “Underground Regulations”
§23:72 Prospective vs. Retroactive Application of En Banc Decisions
§23:73 Effect of Reversal of En Banc Decision by Court of Appeal
§23:74 Effect of Pending Writ Petition or Board’s Own Grant of Reconsideration on Validity of En Banc Decision
VI. BOARD’S “REMOVAL” POWER
§23:80 Interim Remedy Is Authorized by LC §5310
§23:81 Examples of Exercise of the Removal Power
§23:82 Refusal to Grant Removal
§23:83 Not to Avoid Trial; WCJ’s Obligations During Removal Proceedings
§23:84 Removal Following WCJ’s Orders to Develop Record
§23:85 Procedures on Petition for Removal: WCJ Report
§23:86 Effect of Decision on Removal on Further Proceedings
VII. PROCEEDINGS FOLLOWING RECONSIDERATION
§23:90 Hearings After Grant of Reconsideration
§23:91 Decisions After Reconsideration
§23:92 Further Reconsideration: No Successive Petitions Unless “Newly Aggrieved”
§23:93 WCJ Action After Reconsideration
§23:94 No Automatic Assignment after WCJ Reversal
VIII. JUDICIAL REVIEW
§23:100 Time and Place for Filing
§23:101 Petition for Writ
§23:102 Review by Appellate Courts Only
§23:103 Writ of Mandate and/or Prohibition
§23:104 Time Limits: “Jurisdictional”
§23:105 Final Board Orders Only
§23:106 Grounds of Review
§23: 107 “Substantial Evidence” Rule: Board Factual Determinations Final; Impact of Liberal Construction Mandate
§23:108 Rule of Court 8.495(a): Fair Statement of Material Evidence Required; Inclusion of WCJ’s Reports
§23:109 Unreasonable or Arbitrary Awards Prohibited
§23:110 Form of Petition
§23:111 Answer to Petition
§23:112 Time Limits and Extension Thereof for Filing Answer
§23:113 Drafting the Petition; Practice Tips
§23:114 “Skeleton” Petitions May Be Augmented
§23:115 “Lay Representatives” Barred on Appellate Review
RECONSIDERATION,
REVIEW
23-3 Reconsideration and Review
IX. APPELLATE PROCEEDINGS
§23:120 “Postcard” Writ Denial
§23:121 Citation of Case Authority: The CCCs and CWCR; “Writ Denieds,”
“Significant” and “Noteworthy” Panel Opinions
§23:122 Summary Remand
§23:123 Granted Writs
§23:124 Oral Argument and Appellate Opinion
§23:125 Published and Unpublished Court of Appeal Opinions
§23:126 Petition for Supreme Court Review
§23:127 Attorney’s Fee on Appellate Proceedings
§23:128 Appellate “Costs”
§23:129 Enforcement of Award While Writ Proceedings Are Pending
§23:130 Constitutional Remedies Available in Federal Court
X. PROCEEDINGS FOLLOWING JUDICIAL REVIEW
§23:140 Final Decision or Subsequent Proceedings
FORMS (ON DIGITAL ACCESS ONLY)
23.1 Petition for Reconsideration (DWC WCAB Form 45)
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