Gov. Gavin Newsom’s preliminary budget proposal includes a proposal to add 8 new judges for the Workers’ Compensation Appeals Board.
The proposal, which was first reported on by our friends at WorkCompCentral, would provide for six new administrative law judges at the various WCAB offices, and two more judges to help with an administrative backlog at the Appeal Board office in San Francisco. The backlog was most recently described in several appellate cases, with the most prominent one being Earley v. WCAB.
In that case, the 2nd District Court of Appeal issued a published decision stating that the WCAB could no longer continue its “grant for study” practice as it had in the past. Instead, the WCAB could still continue granting itself more time in response to petitions for reconsideration, but that it had to issue more reasoned orders explaining why.
Before the 2nd DCA’s published decision in Earley, the WCAB would on occasion grant petitions for reconsideration, state they needed more time to issue a decision, and then sometimes take a year or years to issue the subsequent decision. This led to a backlog of cases that were awaiting decisions.
Although we do not know how many cases there are in the grant for study backlog, estimates from 2023 varied somewhere between 500 to 800 cases. The addition of two judges to the Appeals Board’s office in San Francisco would help the WCAB reduce the backlog.
If one reads the comments at the bottom of the WorkCompCentral’s blog, two Southern California practitioners had interesting feedback on the topic:
- Defense attorney George Corson pointed out that the two judges assigned to the Appeals Board could help reduce the backlog, but the 6 new judges would probably increase the number of cases being appealed. He recommended a ratio of one WCAB commissioner for every 20 workers’ compensation judges to help avoid future backlogs. Using that ratio, he estimated that the California workers’ compensation system would need 11 WCAB commissioners at this point in time, as opposed to the seven we have today.
- Applicant’s attorney Alexander Solhi noted that better-reasoned decisions could reduce the number of appeals. He recommended improved supervision and training as a way to create better decisions.
Your humble blogger included Corson’s and Solhi’s comments in this blog because they do make sense. Perhaps the days of seven commissioners was enough in the early 2000s, but it seems that a backlog of 500-800 cases is evidence that seven is no longer enough.
If one looks back, the WCAB was also not sufficiently staffed with seven commissioners – the WCAB routinely had less than seven commissioners for years at a time, due to multiple governors’ failures to appoint new commissioners. Now when the WCAB is missing active commissioners, they are allowed to have deputy commissioners write panel decisions. Still, perhaps more of both are needed.
Some have questioned what additional commissioners or staff attorneys would do once the backlog of cases is eliminated. Should that happen, your humble blogger would propose that they could work on the incoming petitions for reconsideration and removal, as that appears to be a well that will almost never run dry.
But as the backlog of grant for study cases shows, a lack of work has been the least of the WCAB’s worries. I’m sure most of us workers’ compensation practitioners on the ground level would prefer a court system that is a little overstaffed, as opposed to understaffed. At least Gov. Newsom’s proposal is a step toward that.
VOLUMINOUS PETITIONS FOR RECON, REMOVAL
Lastly, the undersigned has always marveled at the vast volume of petitions the commissioners receive. One only need to look back to 2011, when then-commissioners Ronnie Caplane and Alfonso Moresi appeared at various workers’ compensation conferences, and candidly described the issues they were seeking to address.
(To Solhi’s point, the commissioners also mentioned in 2011 that they were giving judicial training to judges for the first time in four years, in an attempt to reduce lien litigation.)
Whether it was liens or attorneys’ gamesmanship with the QME process, the issues these commissioners were analyzing were far from simple, and it was clear they spent hours debating the pros/cons of certain judicial stances.
While that sounds like it might be enjoyable from an academic perspective – the fact is that the WCAB issued more than 926 panel decisions in 2023 alone, and we have reason to believe that they received a good number more petitions for reconsideration/removal than that. That means that if each commissioner were to split those panel decisions evenly, it averages to about 11 a month. With about 21 business days in every month, that means that a WCAB commissioner would have to author an opinion a little faster than every other day, and if another commissioner on the panel disagrees, they would have to confer and hammer out an opinion. That’s simply not an easy task when one considers that these decisions are chock-full of citations and judicial reasoning.
In conclusion, more staff for the Appeals Board’s office appears to be appropriate. Perhaps our lawmakers will see it that way and see fit to expand on Gov. Newsom’s proposal.
Got a question about workers’ compensation defense issues? Feel free to contact John P. Kamin. Mr. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location, where he monitors the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist for WorkCompCentral, where he reported on work-related injuries in all 50 states. Please feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.
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