“The History of the WCAB Function, Organization, Members and Procedure” By Jonathan Drake Char, Esq.

This blogger greets you again, but with the topic on the history of the Workers Compensation Appeals Board (WCAB) function, organization, members and procedure. The WCAB is made up of a seven-member body with defined qualifications, leadership and staffing. The current members include Chairperson Katherine Zalewski, commissioners José H. Razo, Katherine Dodd, Craig Snellings, Joseph Capurro, and Paul Kelly (with one seat vacant) and Deputy Commissioners Anne Schmitz (Secretary), Patricia Garcia, and Lisa Sussman.

The WCAB provides statewide oversight to ensure workers’ compensation decisions align with the law and evidence. It offers a mechanism to correct legal or factual errors and supplies a pathway to higher court review. The chairperson is designated by the governor and the seven members with six-year terms are appointed by the governor with the consent of the Senate.

The WCAB processes petitions for reconsideration of final orders from Workers Compensation Appeals Judges as well as petitions for removal to address non-final orders that could cause substantial prejudice or irreparable harm. The assignment of Commissioners occurs on a rotating three commissioner panel with decisions occurring in stages where the 1^st of the three Commissioners is provided three days to decide, then the case goes to the 2^nd Commissioner who gets two days to decide and then passes to the 3^rd Commissioner to decide. If two or more of the three Commissioners agree on a disposition, the case goes to the appeals board staff for preparation of a written decision.

The result of a petition for reconsideration or petition for removal may consist of a denial of the petition, grant for reconsideration for further proceedings, or a dismissal of the petition on other grounds such as untimeliness or other miscellaneous reasons. The timeliness of a petition has been the basis of recent controversy, but the general rule is that the aggrieved party by a final decision may petition within 20 days after service of the decision and the WCAB must act within 60 days from the filing of the petition or it is denied by operation of law.

Today we have come a long way since the inception of workers’ compensation. Common law once controlled prior to workers compensation, which required an employee to demonstrate negligence on behalf of the employer which was difficult to win because of the defenses to negligence including the master servant assumption of risk, the fellow servant doctrine injury from coworker, the doctrine of contributory negligence and reluctance of coworkers testifying on behalf of injured workers.

In 1902, Maryland established a workers’ compensation program for hazardous jobs. Montana’s 1909 act was invalidated for denying trial by jury and violating equal protection by allowing lawsuits under workers’ compensation or common law. In 1907, California held employers liable for supervisors’ negligence, limiting the fellow servant doctrine to different departments or equipment.

In 1910, California courts required employers to prove contributory negligence. New York’s 1910 law mandated workers’ compensation for eight hazardous jobs, removing certain defenses but violating due process. The 1911 Roseberry Act offered a choice between common law and workers’ compensation, eliminating some defenses but keeping contributory negligence unless the employee’s fault was minor.

California had a voluntary system, while New York’s mandatory system was struck down. Despite this, industrial tragedies like the Triangle Fire and mine disasters occurred. Seventeen days after the Triangle Fire, the Roseberry Act was passed, offering $100 in medical benefits for 90 days, and $21 per week for temporary total disability.

The Industrial Accident Board found that workers’ compensation led to quicker, larger settlements for employees. Statistics showed specific values for body parts, like $66.94 for a thumb and $1,577.65 for a right arm, compared to an $18 weekly wage. The IAC questioned if California could afford to undervalue workers’ lives at less than $1,000 each.

The 1913 Boynton bill established workers’ compensation, paying 65% of wages for temporary total disability and life pensions for 70% permanent disability. It created a Permanent Disability rating schedule and death benefits, making workers’ compensation generally the exclusive remedy. A year later, work injuries dropped by 50%. Known as “workmen’s compensation” until 1974, the law continues to evolve to protect workers, including first responders.