The Writ of Review in Workers’ Compensation Practice
The bulk of workers’ compensation litigation takes place through a specialized administrative process that includes workers’ compensation judges (WCJs) and the Workers’ Compensation Appeal Board (WCAB). However, injured employees who remain disappointed by the decisions of the WCJ as well as the WCAB can take their cases into the California state court system by requesting a writ of review.
Once an injured employee exhausts all administrative options, he or she can ask the California Court of Appeals to consider the case. However, this does not mean that the administrative proceedings before the WCJ and the WCAB are simply ignored. The Court of Appeals is closely constrained by many of the determinations made by these bodies:
- The Court of Appeals does not accept new evidence or hear new testimony. It relies only upon the record established during the administrative process.
- The Court of Appeals gives significant deference to the factual findings and credibility determinations made by the WCJ and the WCAB. It usually only disturbs these findings if it finds they lack substantial evidentiary support.
- The Court of Appeals may remand a case back to the WCAB if the judges feel the record is under-developed or deficient.
- The Court of Appeals is not, however, constrained by the WCJ or WCAB’s determinations on questions of law. The court is free to decide these questions without granting any deference to the decisions made below.
California workers’ compensation attorneys always endeavor to resolve their clients’ cases expediently, even before the WCJ hearing if possible. However, in difficult cases it may be necessary to go to court in order to get a just and legally correct decision. While only a small minority of cases go to court on a writ of review, attorneys should still be prepared to go to this level when necessary and appropriate.