California Workers' Compensation Appeals Board Reconsideration Petition
Drawing on section 5900, the court in Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (1980) concluded that the standard for determining what decisions are subject to reconsideration under section 5900 and the standard for determining what decisions are reviewable under section 5950 should be similar.
As the Safeway court put it, "whether severance and preliminary determination of threshold issues will serve statutory policy in a particular case is a question which ought to be decided, in the first instance, by the Board.
Viewing sections 5900 and 5950 as establishing similar tests of ripeness will permit the appellate court to accord appropriate deference to the Board's judgment." (Safeway, supra, 104 Cal. App. 3d at p. 535.)
Safeway involved a workers' compensation judge decision, in a bifurcated hearing, against the employee on a coverage issue (the application of the special mission exception to the "going and coming" rule).
The employee petitioned the Workers' Compensation Appeals Board for reconsideration.
The Workers' Compensation Appeals Board granted reconsideration, found in favor of the employee, i.e., that the injury was compensable, and remanded the matter for further hearing and decision on the other issues raised by the employee's claim.
The employer sought section 5950 judicial review of the Workers' Compensation Appeals Board order on reconsideration.
The court in Safeway examined the policies supporting piecemeal review during compensation proceedings in defiance of the usual rule requiring finality.
It pointed out that judicial review of Board orders determining threshold issues may in many cases better serve the statutory scheme and its objectives of expedition and economy by avoiding unnecessary litigation, that the courts are not obliged to grant every petition for review that is filed, that adequate safeguards in the form of monetary sanctions exist to protect against abuse of the appellate process, and that permitting interim review would avoid prejudice to a party who fails to seek review of an order determined to be final despite a remand by the Board. (Safeway, supra, 104 Cal. App. 3d at 533-534.)
The court ultimately held that "the Board did not err in finding that [the employee's] injury arose out of and in the course of his employment." (Id. at p. 538.)
The Safeway court in part relied upon the only decision then existing on the subject of finality, Gumilla v. Industrial Acc. Com. (1921) 187 Cal. 638 [203 P. 397] which did not address the issue faced in Safeway or in our case, to wit, whether judicial review is appropriate of a Workers' Compensation Appeals Board order issued before final administrative adjudication of the right to compensation.
In Gumilla, the claimants sought review of an order of the Industrial Accident Commission (now the Workers' Compensation Appeals Board) granting the employer's petition for rehearing, the statutory predecessor to reconsideration.
The commission had previously decided the question of the claimant's entitlement to benefits, yet agreed to rehear the matter.
The employer's petition had been filed several days late, but the commission granted it nonetheless because the employer had shown excusable neglect.
The claimants filed their petition for writ of review from the commission's order granting a rehearing, even though the commission had not yet reheard the case or rendered a decision.
The Supreme Court held that the writ of review did not lie because the order granting a rehearing was not a final adjudication by the commission.
The petitioners' remedy was to await the commission's final decision on rehearing and petition for rehearing so as to challenge the commission's jurisdiction to issue its final order. (Gumilla, supra, 187 Cal. at pp. 639-640.)
Safeway has been followed, expressly or implicitly, in several subsequent appellate decisions, occasionally with comment. (See Kosowski v. Workers' Comp. Appeals Bd., supra, 170 Cal. App. 3d at p. 636 [employer entitled to credit the self-employment earnings of employee against 4850 payments]; Ameri-Medical Corp. v. Workers' Comp. Appeals Bd. (1996) 42 Cal. App. 4th 1260, 1270, fn. 12 [50 Cal. Rptr. 2d 366] [validity and effect of 4628, subd. (d) and discovery relating to medical clinic claim for reimbursement].)
One court has remarked that the upshot of Safeway is the placement of the jurisdiction of the courts under section 5950 in the hands of the Workers' Compensation Appeals Board (WCAB), because a decision by the Board to grant a petition for reconsideration under section 5900 means that the WCAB's "subsequent decision is 'final' for purposes of appellate review." (Kosowski v. Workers' Comp. Appeals Bd., supra, 170 Cal. App. 3d at p. 636, fn. 2.)
Some published decisions address issues on writs of review without reference to Safeway or section 5950. (See for example Hansen v. Workers' Comp. Appeals Bd. (1989) 211 Cal. App. 3d 717 [259 Cal. Rptr. 506] [venue of defense medical examination; WCAB denied removal petition]; Department of Justice v. Workers' Comp. Appeals Bd., supra, 213 Cal. App. 3d at p. 198 [jurisdiction of WCAB]; Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal. App. 4th 1104, 1107-1108 [9 Cal. Rptr. 2d 345] [denial of 5900 petition by operation of law].)
Other cases exist that refuse review where the WCAB remanded for trial after vacating the WCJ's decision. (See Southern Cal RTD v. Workers' Comp. Appeals Bd. (1976) 41 Cal.Comp.Cases 350 [Board reversed WCJ's decision that statute of limitations barred employee's claim.].)