California: Follow the Rules When Petitioning for Reconsideration

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A petition for reconsideration is an extremely valuable tool for ensuring that a workers’ compensation administrative law judge (WCJ) has made the correct determination during the course of a workers’ compensation proceeding. However, if a party wants to have an error made by the WCJ reconsidered, that party should strictly comply with the statutory requirements when filing a petition for reconsideration.

California Code of Regulations, title 8, section 10842 sets forth the necessary contents of a petition for reconsideration:

"(a) Every petition for reconsideration, removal, or disqualification shall fairly state all of the material evidence relative to the point or points at issue. Each contention contained in a petition for reconsideration, removal, or disqualification shall be separately stated and clearly set forth. A failure to fairly state all of the material evidence may be a basis for denying the petition.

(b) Each petition for reconsideration, removal, or disqualification, and each answer thereto, shall support its evidentiary statements by specific references to the record.

(1) References to any stipulations, issues, or testimony contained in any Minutes of Hearing, Summary of Evidence, or hearing transcript shall specify: (A) the date and time of the hearing; and (B) if available, the page(s) and line number(s) of the Minutes, Summary, or transcript to which the evidentiary statement relates (e.g., 'Summary of Evidence, 5/1/08 trial, 1:30pm session, at 6:11-6:15').

(2) References to any documentary evidence shall specify: (A) the exhibit number or letter of the document; (B) the date and time of the hearing at which the document was admitted or offered into evidence; (C) where applicable, the author(s) of the document; (D) where applicable, the date(s) of the document; and (E) the relevant page number(s) and, if available, at least one other relevant identifier (e.g., line number(s), paragraph number(s), section heading(s)) that helps pinpoint the reference within the document (e.g., 'the 6/16/08 report of John A. Jones, M.D., at p. 7, Apportionment Discussion, 3rd full [Defendant's Exh. B, admitted at 8/1/08 trial, 1:30pm session]').

(3) References to any deposition transcript shall specify: (A) the exhibit number or letter of the document; (B) the date and time of the hearing at which the deposition transcript was admitted or offered into evidence; (C) the name of the person deposed; (D) the date and time of the deposition; and (E) the relevant page number(s) and line(s) (e.g., 'the 6/20/08 depo of William A. Smith, M.D., at 21:20-22:5 [Applicant's Exh. 3, admitted at 12/1/08 trial, 8:30am session]')."

California Code of Regulations, title 8, section 10846 addresses "skeletal petitions":

"A petition for reconsideration, removal, or disqualification may be denied or dismissed if it is unsupported by specific references to the record and to the principles of law involved."

California Code of Regulations, title 8, section 10852 states:

"Where reconsideration is sought on the ground that findings are not justified by the evidence, the petition shall set out specifically and in detail how the evidence fails to justify the findings."

Recently, a panel of commissioners with the Workers’ Compensation Appeals Board (WCAB) addressed these statutory requirements. In Menjivar v. Forest River, Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 584, a lien claimant sought reconsideration of the Findings and Order wherein the workers' compensation administrative law judge (WCJ) found "that there is no evidentiary support for the lien for reasonableness and necessity with regard to the lien of Dr. Lopez and Lopez Chiropractic." The WCJ ordered that Lopez Chiropractic "take nothing on [its] lien."

In reviewing the lien claimant’s petition for reconsideration, the panel of commissioners first noted that the petition for reconsideration was skeletal and devoid of reference to “the record or applicable law.” Though the hearing representative contended on reconsideration that the lien claimant’s services were referred by the authorized MPN physician, there was no evidence in the record to support that finding. Additionally, the panel noted that lien claimant further argued that "defendant was aware that the physical therapy was referred by the PTP and were [sic] reasonable and necessary."

In reviewing lien claimant’s contentions, the panel noted:

Based upon our review of the record, and for the reasons set forth herein, we will dismiss lien claimant's petition because it is skeletal and in violation of California Code of Regulations, title 8, sections 10842 and 10846. Furthermore, we will grant removal on the Appeals Board's own motion and issue a notice of intention to issue sanctions against petitioner, L. E. Lopez Chiropractic, Inc. and the petitioning hearing representative, Leonard Pena, jointly and severally, in the amount of $1,500.00 for filing a skeletal, frivolous and unsubstantiated petition for reconsideration. Additionally, the matter of the award of costs and fees incurred by defendant in opposing lien claimant's frivolous petition shall be determined by the WCJ upon return of this matter to the trial level.

In explaining its decision to impose sanctions, the panel explained that lien claimant filed a petition without citation to the record or citation to the law. The panel noted that lien claimant’s claims were unsupported by the evidence and contrary to the record set forth by the WCJ in the report which did rely upon the evidentiary record. As such, the panel noted, lien claimant’s petition was in violation of California Code of Regulations, title 8, sections 10842 and 10846 which prohibit skeletal and unsupported petitions.

This decision highlights the importance of first offering the evidence at trial that supports your position. Secondly, this decision points out that, assuming you have established an adequate record at trial that supports your position, when asking for reconsideration, point out with specificity how the record and law support your position contrary to the determination made by the WCJ. Though this would appear self-evident, it is surprising how often the parties will fail to substantiate their positions at trial, but will nevertheless pursue that position all the way through the appellate process.

© Copyright 2012 LexisNexis. All rights reserved. This article will appear in a forthcoming issue of the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).

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