If the judge at WCAB denies my case, what is the process & probable timeline I am looking at and canother side appeal if I win?
I appealed my workers compensation denial and am waiting on issues of compensability which needs to be decided by a judge, I have waited 16 months already still dont have a court date, im wondering how much longer I am going to have to wait, I lost all my income, cant work and am thinking I will apply for SSDI
I am assuming from this question that you have taken your case to trial where evidence was presented and the case was submitted for a decision. If that is the case, the judge has 90 days to write a decision on the issues presented to him by you and the opposing party. In some instances, the parties ask the judge for time to write a post-trial brief wherein they outline the issue(s) presented to the court for a decision and present their arguments and the law in support of their position(s). Some judges will not submit the case for decision after receiving the briefs from the parties to the trial; thus, the 90 time clock starts to run after the case is submitted.
After the trial, you should receive a document from the Workers’ Compensation Appeals Board titled Minutes of Hearing and Summary of Evidence. This document details the stipulations of the parties, i.e. those facts upon which the parties agree, and the issues, i.e. those aspects of the case where the parties could not agree and are seeking a decision from the Judge. The Summary of Evidence will also contain an outline of the documentary evidence submitted by the parties, which are generally medical records or non-medical information that has a bearing on the issue presented to the Judge for a decision. It should also contain a summary of any testimony, if there was testimony given on the date of trial; however, it is not a verbatim transcript of the testimony, it is only a summary.
Both sides retain the right to appeal any decision they feel was not supported by law and by which they are aggrieved. The Petition for Reconsideration is the first level of an appeal in a workers’ compensation case. The Labor Code provides that any party aggrieved by the findings of a Judge may file a Petition for Reconsideration within 20 days of the date on which the Judge’s decision was filed and served by the Court. The Law also allows five days for mailing of the Petition for Reconsideration.
The second level of an appeal would be to file a Petition for Writ of Review with the District Court of Appeal having jurisdiction over the Workers’ Compensation Appeals Board where the trial of your case was held. A Petition for Writ of Review must be filed within 45 days of the Workers’ Compensation Appeals Board’s decision on the Petition for Reconsideration, i.e. if your Petition for Reconsideration was denied on January 1, 2013, the Petition for Writ of Review must be filed with the Court of Appeal having jurisdiction on or before February 15, 2013. The law that allowed five days for mailing of a Petition for Reconsideration does not exist for a Petition for Writ of Review; there is no five day grace period for the Petition for Writ of Review to be transmitted by mail.
Finally, if the Petition for Writ of Review is denied, an appeal to the California Supreme Court is the last hope for a favorable outcome. Unfortunately, a Petition for Writ of Review to the California Supreme Court must be filed within 10 days of the date on which the decision of the court of appeal becomes final.
The time frames aforementioned do not take into account how long each individual court may take in deciding whether the appeal before them has any merit. There may be oral argument at a California Court of Appeal or the California Supreme Court. There may be other parties not associated with the case but who may be impacted by the outcome who wish to file a brief in an attempt to sway the Court one way or another. I realize that this does not give much hope for a speedy outcome should the case be appealed; however, I would also note that a very low percentage of cases are taken up when a Petition for Writ of Review has been filed, perhaps as low as 1 in 20. The percentage is even lower at the California Supreme Court level.
THIS ANSWER WAS WRITTEN MADE AVAILABLE BY MITCHELL & POWELL A P.L.C. THE LAWYER OR LAW FIRM PUBLISHED THIS ANSWER... more
THIS ANSWER WAS WRITTEN MADE AVAILABLE BY MITCHELL & POWELL A P.L.C. THE LAWYER OR LAW FIRM PUBLISHED THIS ANSWER FOR EDUCATIONAL PURPOSES ONLY AS WELL AS TO GIVE YOU GENERAL INFORMATION AND A GENERAL UNDERSTANDING OF THE LAW, NOT TO PROVIDE SPECIFIC LEGAL ADVICE. BY USING THIS WEBSITE AND/OR RECEIVING EMAILS OR OTHER COMMUNICATIONS AS A RESULT OF THIS WEBSITE, YOU UNDERSTAND THAT THERE IS NO ATTORNEY-CLIENT RELATIONSHIP BETWEEN YOU AND MITCHELL & POWELL A P.L.C., THE WEBSITE PUBLISHER, OR ANY AUTHOR OF ANY WORK ON THE WEBSITE. THE WEBSITE SHOULD NOT BE USED AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE FROM A LICENSED, PROFESSIONAL ATTORNEY IN YOUR STATE. THE ATTORNEYS OF MITCHELL & POWELL A P.L.C. ARE LICENSED IN THE STATE OF CALIFORNIA ONLY.
Why don't you have a Court date? Do you have an Attorney? You don't really want to go to the WCAB for a Trial without an Attorney. If you have not filed for a Court date yet, you are probably looking at March 2013 for a Conference and May 2013 for a Trial in San Bernardino. Unless you and/or your Attorney wait further....
We give free general concepts to be helpful, but you should give ALL your facts to a licensed Attorney in your... more
We give free general concepts to be helpful, but you should give ALL your facts to a licensed Attorney in your state before you RELY upon any legal advice.
Do you have an attorney? As Mr Corson says, you really don't want to go to trial without one. Ask your attorney about the court's schedule. Every court has a different backlog. In San Jose, it's 3 weeks to hearing and 30 days to trial, no more than 90 days for a decision.
If you do not already have an attorney then you need one ASAP.
DISCLAIMER: David J. McCormick is licensed to practice law in the State of Wisconsin and this answer is being... more
DISCLAIMER: David J. McCormick is licensed to practice law in the State of Wisconsin and this answer is being provided for informational purposes only because the laws of your jurisdiction may differ. This answer based on general legal principles and is not intended for the purpose of providing specific legal advice or opinions. Under no circumstances does this answer constitute the establishment of an attorney-client relationship.