California EAMS: Tips for Filing Petitions for Reconsideration

California EAMS: Tips for Filing Petitions for Reconsideration

Electronic filing of documents has provided an opportunity for the WCAB to revamp their rules on Petitions for Reconsideration. Failure to follow these rules may result in denial of your argument, or worse, the imposition of sanctions. AD Rule §10561 allows the WCAB to impose sanctions, on its own motion, for a variety of actions, including the violation of any of the Regulations set forth below. (See United States Fire Ins v. WCAB, (Palafox), (2010) 75 CCC 547, Ezra v. WCAB, (2008) 73 CCC 391.) So it’s prudent to become familiar with the guidelines for filing your Petition for Reconsideration to maximize your chance for success.

1. Adhere to Form and Size Requirements – Rule §10232:

EAMS Rule §10232 sets forth the proper format for documents that are submitted in EAMS. This rule includes documents filed at the district office level, but also at the Appeals Board level for the WCAB Commissioners. Among other things, this Rule requires that documents be printed on white paper with black ink and that documents include a standard legal caption with the ADJ number. Documents, including Petitions for Recon, must also adhere to the twenty-five (25) page limit per Rule §10232(a)(10). Succinct argument is always more effective than lengthy ones, which brings to mind the famous quote, “I’m sorry I had to write you such a long letter. I didn’t have time to write you a short one.”

2. Newly Discovered Evidence:

WCAB Rule §10842 states the contents of the Petition for Recon must be based on evidence already admitted into the record. Parties should not provide new evidence in their Petition for Reconsideration, unless it is “newly discovered.” WCAB Rule §10856 clarifies that, “(w)here reconsideration is sought on the ground of newly discovered evidence that could not with reasonable diligence have been produced before submission of the case or on the ground that the decision had been procured by fraud…”

If a party makes this allegation and attaches “new” evidence, Rule §10856 requires they also provide an offer of proof supporting their claim which includes:

“(a) the names of witnesses to be produced;

(b) a summary of the testimony to be elicited from the witnesses;

(c) a description of any documentary evidence to be offered;

(d) the effect that the evidence will have on the record and on the prior decision; and

(e) as to newly discovered evidence, a full and accurate statement of the reasons why the testimony or exhibits could not reasonably have been discovered or produced before submission of the case.”

3. Accurate Statements Based on the Evidentiary Record

Attorneys are encouraged to zealously pursue their client’s rights during the appeals process. And they are entitled to provide their “spin” on the facts of their case. However, parties are required to provide a “fair” and accurate statement of all the material evidence and not just the evidence that supports their position. They must provide a summary of ALL evidence relevant to the issue in question. (See WCAB Rule §10842 and Rules Prof. Conduct, Rule 5-200(A) and (B).)

Also, the parties must explain in detail how the evidence fails to justify the findings. (WCAB Rule §10852)

In providing this summary, the petitioner is required by Rule §10842(b) to “support its evidentiary statements by specific references to the record.” The Rule provides the following examples:

(a)   “Summary of Evidence, 5/1/08 trial, 1:30 p.m. session, at 6:11-6:15” or

(b)   “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, 1:30 p.m. session]”

(c)   “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, 8:30 a.m. session]”

4. Attachments that are Already in the Record

When preparing a Petition for Reconsideration, parties sometimes try to make it easy for the commissioners to review a pertinent piece of evidence. They believe that by attaching that document, such as a portion of a particularly persuasive medical report, they will increase their chances for success. In fact, they may have ruined them. Rule §10842(c) specifically prohibits parties from attaching copies of documents that have already been received into evidence. Often the extra copies are simply detached and thrown in the recycle bin. However, parties have also been sanctioned for doing this, especially if they ignored a first warning prohibiting such action.

5. Supplemental Petitions

From time to time, parties are sometimes asked by the commissioners to provide a supplemental petition on a particular issue in question. However, parties should never submit a supplemental petition unless they are asked to do so. If an issue arises that must be brought to the commissioners’ attention immediately, the parties should request an opportunity to submit a supplemental petition, and only submit the document after receiving permission to do so. (See Rule §10848.)

6. Sanctions – LC 5813 & AD Rule 10561:

As stated above, adhering to all the Regulations substantially increases your chances of success with your Petition for Reconsideration. It also helps you to avoid unwanted mandated appearances at commission conferences to discuss a Notice of Intent to Impose Sanctions. Parties are often caught off guard after filing a Petition for Reconsideration, when they receive an NIT for sanctions for violating a rule they didn’t even know existed. The best practice is to become familiar with all of the rules and regulations related to filing documents with the WCAB to ensure the best results for both your client and yourself.

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