ADJ10522919 · October 13, 2026

The WCAB found the petition timely under Labor Code section 5909 and granted reconsideration to allow further review of the merits and record.

From the decision · page 2Petitions for reconsideration filed on or after July 14, 2026 are subject to section 5909, which states that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

The WCAB acknowledged the duty to develop the record and found the existing medical evidence stale but substantial; granted reconsideration to allow further study and due process.

The petition for reconsideration was filed timely and acted upon within the 60-day statutory period after transmission to the Appeals Board on August 14, 2026.

Favours Defendant prevailed

This established the WCAB's jurisdiction to grant reconsideration and proceed with further review.

From the decision · page 3Event Description is the phrase “Sent to Recon” and under Additional Information is the phrase “The case is sent to the Recon board.” Here, according to Events, the case was transmitted to the Appeals Board on August 14, 2026, and 60 days from the date of transmission is October 13, 2026. This decision is issued by or on October 13, 2026, so that we have timely acted on the Petition as required by section 5909(a). Section 5909(b)(1) requires that the parties and the Appeals Board be provided with notice of transmission of the case. Transmission of the case to the Appeals Board in EAMS provides notice to the Appeals Board. Thus, the requirement in subdivision (1) ensures that the parties are notified of the accurate date for the commencement of the 60-day period for the Appeals Board to act on a petition.

The vocational expert report of Frank Diaz, CDMS, was relied upon by the WCAB as substantial evidence supporting the 100% permanent disability finding.

Favours Defendant prevailed

The substantiality of this report was challenged but upheld, influencing the decision to grant reconsideration rather than remand for new evidence.

From the decision · page 1ontends that the assignment of a replacement commissioner to the panel is invalid; that the dissenting commissioner opinion raises the question of potential reversible error; that the vocational expert reporting of Frank Diaz, CDMS, relied upon to find 100% permanent disability is not substantial evidence; that our August 3, 2022 “Opinion and Order Granting Petition for Reconsideration” (Order) was an impermissible “grant-for-study” under Earley v. Workers’ Comp. Appeals Bd. (2023) 94 Cal.App.5th 1 [88 Cal.Comp.Cases 769]; and that, due to a nearly four year delay in our ODAR, the case requires remand for additional medical evaluation and further discovery rather than issuing an award on the existing record.

The evidentiary record closed at the mandatory settlement conference on March 9, 2022, and the WCAB found the existing medical evidence substantial despite the nearly four-year delay in appellate review.

Favours Defendant prevailed

This supported the decision to defer final decision and allow further study rather than remand for new medical evaluation.

From the decision · page 5(1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350]; Hernandez v. Staff Leasing (2011) 76 Cal.Comp.Cases 343, 346-347 (Appeals Board significant panel decision).) On the other hand, the adjudicative function of the Appeals Board during the reconsideration process involves a comprehensive retrospective examination of the evidentiary record exactly as it crystallized at the time of the underlying trial. The formal hearing in this matter took place on March 9, 2022. The evidentiary record closed based squarely on the extensive documentation submitted by the parties at that precise chronological juncture. The administrative duration of the subsequent appellate review process does not retroactively invalidate the substantiality of the existing medical reporting. Defendant heavily emphasizes the span of nearly four years between the August 3, 2022 Order and the July 9, 2026 ODAR. However, the chronological aging of an appellate case file does not necessarily extinguish the probative value of the constituent medical exhibits. Accordingly, taking into account the statutory time constraints for acting on the Petition, and based upon our initial review of the record, we believe reconsideration must be granted to allow

Labor Code section 5909

Petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board.

The WCAB found the petition timely as the decision was issued on the 60th day after transmission.

From the decision · page 2Petitions for reconsideration filed on or after July 14, 2026 are subject to section 5909, which states that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

Labor Code section 115

Decisions require a majority vote of three commissioners unless reassigned en banc by majority vote of the Board Chairperson.

The WCAB held that substitution of a panelist and en banc review are internal administrative functions and do not invalidate the panel decision.

From the decision · page 4As a preliminary procedural matter, defendant improperly styled its appellate pleading as a Request for En Banc Review rather than a standard Petition for Reconsideration. The Labor Code contains no provision authorizing a party to file a standalone request for en banc adjudication. Under the statutory framework, the reassignment of a case for an en banc decision operates strictly as an internal administrative function. (Lab. Code, § 115.) Specifically, the chairperson of the Appeals Board holds the exclusive authority to call for a majority vote of the commissioners to determine whether a case requires en banc resolution. (Cal. Code Regs., tit. 8, § 10325(a).) With respect to substituting another panelist to the Order, section 115 governs Appeals Board actions, directing that decisions require a majority vote. The statute mandates the chairperson to assign pending reconsideration cases to three rotating members for hearing, consideration, and decision. Once assigned, those three members hear and decide the matter unless a majority of the Board votes to reassign the case en banc to resolve novel issues or achieve uniformity. This statutory language is explicit, where it establishes the three-member panel requirement but does not have any requirement about identifying the members of the panel.

Labor Code sections 5701 and 5906

Duty to develop the record when evidence is insufficient to determine issues raised for trial.

The WCAB acknowledged the duty to develop the record but found the existing medical evidence substantial and not invalidated by passage of time.