Nelson & Sloan v. Workers' Compensation Appeals Board

We have reviewed respondent Hairrell’s request for attorney fees and conclude it should be granted. There was no reasonable basis for the petition because it prematurely raised issues which had not been presented to the Workers’ Compensation Appeals Board (Board) by petition for reconsideration.

Labor Code section 5801 provides in pertinent part: “In the event the injured employee . . . prevails in any petition by the employer for a writ of review from an award of the appeals board and the reviewing court finds that there is no reasonable basis for the petition, it shall remand the cause to the appeals board for the purpose of making a supplemental award awarding to the injured employee or his attorney ... a reasonable attorney’s fee for services rendered in connection with the petition for writ of review. Any such fee shall be in addition to the amount of compensation otherwise recoverable and shall be paid as part of the award by the party liable to pay such award.”

In Employers Mut. Liab. Ins. Co. v. Workmen’s Comp. Appeals Bd., supra, 46 Cal.App.3d 104 [ 120 Cal.Rptr. 48 ], the court set forth two circumstances in which a court may conclude that there is no…