Hey there dear readers, your humble blogger has a question for you.  What do you do when The Workers’ Compensation Appeals Board, through a workers’ compensation Judge’s Order or Finding, exceeds its authority?

Well, a lot of times, you seek reconsideration, right?

Labor Code section 5903(a) provides grounds for reconsideration when “by the order, decision, or award made and filed by the appeals board or the workers’ compensation judge, the appeals board acted without or in excess of its powers.”

Well, Governor Newsom’s May 6, 2020, executive order appears to substantially change provisions of the Labor Code, but those changes are originating solely from the desk of the executive branch, and not from the Legislature.  In your humble blogger’s opinion, this presents a substantial conflict in the law: the provisions of the Labor Code as written by the state Legislature and the executive Order issued by the Governor.

Do you have 30 days or 90 days to investigate and deny a claim?  Well the Labor Code says 90 and the Governor says 30.  Which is it?

How often does temporary disability need to be certified?  Well the California Code of Regulations says 45, but the Governor says 15.

And what if you sit at the desk of the Death Without Dependents Unit?  Is the state to get no death benefits from deceased employees without any dependents?  The Labor Code says “no, you can’t give higher risk jobs to employees without dependents” but the Governor’s executive Order says “The Department of Industrial Relations shall waive collection on any death benefit payment due pursuant to Labor Code section 4706.5 arising out of claims covered by this Order.”

Well, as referenced earlier on this most humble of blogs, the California Constitute gives plenary power over workers’ compensation to the state Legislature, not to the Governor.

So, here’s a hypothetical for you, dear readers (and I welcome the three applicant attorneys who read this blog to participate) – let’s say there’s a COVID19 claim, and, under the Labor Code the result would go one way, but under Executive Order N-62-20 (by no means, dear readers, to be confused with Order 66) the result would go another.  Which way does the WCJ rule? 

Well, if the WCJ decides to follow Order N-62-20, isn’t that the WCAB acting in excess of its powers?  By contrast, if the WCJ decides to follow the Labor Code and not the Order, won’t the aggrieved party seek reconsideration, arguing the other side?

Just something to ponder, dear readers, as we head into the weekend.