What Is the Difference Between Removal and Reconsideration?

When working in the legal system, it is essential to have a firm understanding of the procedures and rules if you are to be successful in your claim or defense.  Workers’ compensation is no exception, and to make sure that your business is protected, having expert legal advice in addition to some basic knowledge about the process can be the difference between successfully defending a claim against your business and having to pay an unfair judgment.  If your business is involved in workers’ compensation litigation, it is possible that the judge could make a decision with which you do not agree.  If that occurs, you have two options to attempt to overturn that decision.

The first option is called a Petition for Reconsideration.  If you have received a final order in your workers’ compensation case from the WCJ, you can file a Petition for Reconsideration.  Under California Labor Code § 5900, a Petition for Reconsideration asks the Workers’ Compensation Appeals Board to intervene in the case.  California case law provides that a final order is one that “determines any substantive right or liability” of the parties in the case.  California Labor Code § 5910 states that the person wishing for the WCAB to reconsider the WCJ’s ruling has just twenty days from the order to file the petition.  The available grounds to file for reconsideration are: 1) the WCJ acted without power or in excess of its power; 2) the order or award was procured by fraud; 3) the evidence is no sufficient to justify the findings of fact; 4) the existence of newly discovered information that was not available previously; or 5) the findings do not support the order or decision.  Filing the petition also has the effect of suspending the order for ten days.

The other option is a Petition for Removal.  In contrast to a Petition for Reconsideration, a removal request is asking for relief from an order that is not a final order.  As with the Petition for Reconsideration, the Petition for Removal must be filed within twenty days of the order from which the requesting party seeks relief.  To be successful, the appealing party must show: 1) the order from the WCJ will result in prejudice; 2) the order will result in irreparable harm to the appealing party; and 3) reconsideration after the final order will not provide an adequate remedy.

Deciding when and how to appeal a workers’ compensation order is a difficult decision.  Contact us today to talk about your proceedings and what we can do to help protect your business.

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