Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5909
The Appeals Board must act on a petition for reconsideration within 60 days of transmission of the case to the Appeals Board.
The Board timely acted on the petition within the 60-day period.
From the decision · page 3Under Labor Code section 5909(a), the Appeals Board must act on a petition for
reconsideration within 60 days of transmission of the case to the Appeals Board. Transmission is
reflected in Events in the Electronic Adjudication Management System (EAMS). Specifically, in
Case Events, under Event Description is the phrase "Sent to Recon" and under Additional
Information is the phrase "The case is sent to the Recon board."
Labor Code sections 5906 and 5908
The Appeals Board may affirm, rescind, alter, or amend the order, decision, or award upon reconsideration.
The Board reopened the entire record for review and reconsidered the issues including those not raised in the petition.
From the decision · page 4Initially, we note that following the grant of reconsideration, the Appeals Board has the
authority to make new and different findings on issues presented for determination at the trial level,
even with respect to issues not raised in the petition for reconsideration before it. As we observed
in Pasquotto v. Hayward Lumber (2006) 71 Cal.Comp.Cases 223, fn. 7 [2006 Cal. Wrk. Comp.
LEXIS 35, 51§ 17] (Appeals Board en banc), section 5906 provides that "[u]pon the filing of a
petition for reconsideration... the appeals board may, with or without further proceedings and
with or without notice affirm, rescind, alter, or amend the order, decision, or award made and filed
by the appeals board or the workers' compensation judge...." (Lab. Code, § 5906.) Similarly,
section 5908 provides that "[a]fter... a consideration of all the facts the appeals board may affirm,
rescind, alter, or amend the original order, decision, or award." (Lab.
Labor Code section 4909; Herrera v. Workmen's Comp. Appeals Bd. (1969) 71 Cal.2d 254; Maples v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App.3d 827
Allowance of credit for overpayment is discretionary and must be supported by substantial evidence and equitable considerations.
The Board found the WCJ's credit allowance lacked substantial evidence and adequate explanation, warranting deferral.
From the decision · page 5Under Labor Code section 4909, the Appeals Board is allowed to "take[] into account,"
(i.e., to allow a credit) for any payment, allowance, or benefit paid by the defendant to the injured
employee when it was not then due and payable or when there was a dispute or question concerning
the right to compensation. (Lab. Code, § 4909.) The Supreme Court has stated that the allowance
of credit is within the Appeals Board's discretion. (Herrera v. Workmen's Comp. Appeals Bd.
(1969) 71 Cal.2d 254, 258 [34 Cal.Comp.Cases 382].) An Appeals Board panel stated that
"[w]hether a credit is to be allowed is a matter directed to the discretionary authority of the trier of
fact to be weighed in the light of the circumstances of the particular case and should not be
subjected to a harsh dictate that avoids the equities presented." (Cordes v. General Dynamics-
Astronautics (1966) 31 Cal.Comp.Cases 429 (Appeals Board panel decision).) Thus, the
allowance of a credit is a matter of discretion and not a legal entitlement.