By Attorney Robert A. McLaughlin
As part of a long-standing tradition known as New Year's resolutions, people usually consider the past year and create goals for the one to come. Here are the changes I believe the California Workers' Compensation system has to make in 2023.
California must provide sufficient monies to fully fund the Workers’ Compensation Appeals Board to decide the appeals filed with them in the legally required 60 days.
This one should be easy. The Division of Workers Compensation (‘DWC’) and Workers Compensation Appeals Board (‘WCAB’) is 100% user-funded. This means every year, an assessment is levied on all employers and carriers to cover the cost of running the California workers' compensation system. It costs the employers and carriers pennies on the premium dollars collected or reserved for workers' compensation claims. The assessment against the employers and carriers is made by the California Division of Industrial Relations (‘DIR’), of which the DWC and WCAB are subdivisions. The funding does not come from the California General Fund or taxes collected by the State.
Yet, the WCAB does not have sufficient resources to issue decisions within the legally mandated 60 days after an appeal has been filed. Therefore, the WCAB created the fiction of “grant and study.” This legal fiction, so the WCAB claims, allows the WCAB to avoid the legal requirement to answer all appeals within the legally mandated 60-day limit set for in Labor Code § 5909. But the authority for the WCAB to use “grand and study” is not legally clear in situations where the WCAB did not make an error in handling the appeal, such as losing the appeal paperwork. (This happened to Mr. McLaughlin in the late 1990s.)
Over the years, our office has had appeals stuck in the “grant and study” legal fiction hell. I say hell because on average, our appeals put in “grand and study” by the WCAB have taken 2 years to obtain the decision. (Not all our appeals fall into this group, just a small subgroup.) During this time, our clients are stuck waiting for surgeries or other benefits, including monetary benefits. Currently, we have an appeal in the “grand and study” for over 3 YEARS! And we are still waiting for the decision!
Why doesn’t the DIR just assess a few more pennies to provide the support staff the WCAB needs to meet their 60-day legal requirement?
This is a question currently pending before the California Second District Appellate Court in Orange County. Some attorney friends of our office have filed a lawsuit (Writ) demanding the WCAB comply with the 60-day mandatory deadline on their appeals. The Second District Appellate Court has issued an Order to Show Cause (‘OSC’) as to why the appeal should not be deemed denied as a matter of law since no decision on the appeal was made by the WCAB in the mandatory 60 days or explain under what authority the WCAB can exceed the 60-day limit by use of the “grand and study.”
What a shame for injured workers. It is bad enough the system leans in favor of the insurance industry, causing delays in obtaining medical care. Now, there are added delays caused by the State of California not handling all appeals in a timely manner.