WCAB’s “Grant and Study” Procedure Challenged As Unconstitutional and Unlawful

A group of injured workers has petitioned the Court of Appeal to determine whether the Workers Compensation Appeals Board (WCAB or Board) may legally grant itself indefinite extensions of time to issue final decisions regarding appeals from trial-level court rulings.

A party to a workers’ compensation case may appeal a trial-level ruling by filing a Petition for Reconsideration with the Board which is currently staffed by 6 Commissioners. The Labor Code requires that these appeals be decided by the WCAB within 60 days.  However, in many cases the Board, following an unwritten, self-adopted policy and procedure, issues so-called “grant and study” orders which extend that time period indefinitely. In response to a recent public records act request, the WCAB provided data demonstrating that it has issued such “grant and study” orders in over 500 cases within a 3-year period alone, many of which remain undecided for years at time.  While these cases remain in the WCAB’s “administrative limbo”, the injured workers involved in those cases are prevented from receiving the full range of workers’ compensation remedies and benefits to which they would otherwise be entitled.  Employers and insurance companies are also prejudiced by the lack of finality.

On Friday, March 4, 2022, a petition for a writ of mandate was filed in the Court of Appeal, Second Appellate District.  The petition requests that Court of Appeal find that the “grant and study” procedure is unconstitutional and unlawful, revoke all of the “grant and study” orders issued by the WCAB, and order the WCAB to provide a timetable within which it will render final decisions in all cases where such “grant and study” orders have been issued.  This case is entitled Michele Earley, et al. v. The Workers’ Compensation Appeals Board of the State of California, et al., Case No. B318842, and has been assigned to Division of 8 of the Second District Court of Appeal.

Tom Martin, one of the co-signers of the petition in the Earley case said: “The California Constitution requires that the workers’ compensation system function in an “expeditious” manner, and the legislature passed laws to assure that. The system works best when injured workers and employers can get their disputes resolved as quickly as possible”.  

Charles Rondeau, a co-signer of the petition explained: “As the data produced by the WCAB itself proves, the Board faces the daunting task of deciding a large number of petitions for reconsideration. Anecdotal information clearly suggests that the WCAB’s continued utilization of the “grant and study” procedure is that the Board lacks adequate resources to render final decisions regarding these petitions within the time limit established by law. While the workers’ compensation community can certainly empathize with the WCAB’s plight, the appropriate manner for the Board to address the situation is not to continue employing an ad hoc “workaround” which is impermissible under California statutes and which is inconsistent with the California Constitution that explicitly requires that the WCAB decide disputes “expeditiously, inexpensively and without incumbrance of any kind”.  The “grant and study” procedure has been utilized by the Board for decades without a single decision by an appellate court directly addressing and definitively validating its constitutionality and lawfulness. The time has come for such a determination to be made and for the WCAB to seek sustainable, long-term solutions to the challenges which it is facing in rendering timely final decisions. This Petition provides an opportunity for the WCAB to explore and then implement such solutions.”

A copy of the petition filed in the Earley case can be found here:

https://www.dropbox.com/s/xzkhsj49lr7syzb/20220304%20Petition%20for%20Writ%20of%20Mandate%20-%20Conformed%20Copy.pdf?dl=0

For further information regarding the petition, please contact Mr. Martin or Mr. Rondeau.