APPELLATE PROCEDURE - Waiver of issues–Any issue not raised before the Appeals Board in a petition for reconsideration is deemed waived and may not be raised in a petition for writ of review in the Court of Appeal. California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Gumercinda Rodriguez) 10 WCAB Rptr. 10,101 [Writ Denied]

APPELLATE PROCEDURE - Labor Code §5952-The function of an appellate court is not to hold a trial de novo or to exercise independent judgment, but to review the entire record to determine whether the Appeals Board's conclusions are reasonable and are supported by substantial evidence. See Riverview Fire Protection District v. Workers' Comp. Appeals Bd. (1994) 23 Cal.App.4th 1120.) [Writ Denied]

APPELLATE PROCEDURE - Citation to the record–An appealing party has the duty to support arguments in briefs by citation to the record, which includes exact page citations. An appellate court has no duty to search the record for evidence and may disregard factual contentions not supported by citation to the record. (See Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1784.) Alejandro Gomez v. Workers' Compensation Appeals Board, Barry Abshear Landscape Services 10 WCAB Rptr. 10,033 [Writ Denied]

APPELLATE PROCEDURE - Labor Code §5951–An appellate court is precluded from substituting its choice of the evidence for that of the Appeals Board. The appellate court is not permitted to reweigh the evidence or decide disputed questions of fact. The case must be reviewed on the record of the Appeals Board. See Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.ed 159. Smart Modular Technologies v. Workers' Compensation Appeals Board (Roshan Lal) 10 WCAB Rptr. 10,031 [Writ Denied]

APPELLATE PROCEDURE - The Court of Appeal is precluded from substituting its view of the evidence for that of the Appeals Board. (See Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227.) The Court of Appeal is not permitted to reweigh the evidence or to decide disputed questions of fact. (See Georgia Pacific Corp. v. Workers' Comp. Appeals Bd. (1983) 144 Cal.App.3d 72.) 99 Cents Only Stores/Claim Quest, Inc. v. Workers' Compensation Appeals Board (Vardui Abramian) 9 WCAB Rptr. 10,366 [Writ Denied]

APPELLATE PROCEDURE - Time limit to file a petition for writ of review–Labor Code §5950–When a petition for writ of review is not filed within 45 days of the Appeals Board's decision, the appellate court has not jurisdiction and the petition must be denied. (See Southwest Airlines v. Workers' Comp. Appeals Bd. (1991) 234 Cal.App.3d 1421.) Jose Gallo v. Workers' Compensation Appeals Board, Telles Transport, Inc. 9 WCAB Rptr. 10,355 ___Cal.App.4th___

APPELLATE PROCEDURE - The Workers' Compensation Appeals Board is an "inferior Court" and is jurisdictionally required to adhere to and follow the decisions of the Court of Appeal. (See Brannen v. Workers' Comp. Appeals Bd. (1996) 40 Cal.App.4th 377.) [In this case, the Court of Appeal held that the employer complied with Labor Code §5814(b) by paying the unpaid balance of applicant's permanent disability indemnity within 90 days of its discovery of the deficiency and prior to the employee claiming a penalty, and remanded the case to the Appeals Board with directions to rescind the penalty imposed by the WCJ. (See New United Motors Manufacturing, Inc. v. Workers' Comp. Appeals Bd. (Gallegos) (2006) 141 Cal.App.4th 1533, 8 WCAB Rptr. 10,251.)] [Writ Denied]

APPELLATE PROCEDURE - A remittitur from the Court of Appeal directing the Appeals Board to rescind an order imposing a penalty prevents the Appeals Board from conducting a further hearing and receiving additional argument on alternative theories of imposing the penalty or to reinstate the penalty based on an alternative theory that was not previously considered. John Gallegos v. Workers' Compensation Appeals Board, United Motors Manufacturing, Inc. 9 WCAB Rptr. 10,326 [Writ Denied]

APPELLATE-PROCEDURE - Findings and conclusions of the Appeals Board-Labor Code §5953-The findings and conclusions of the Appeals Board on questions of fact are conclusive and final and are not subject to appellate review. Such questions of fact include ultimate facts and findings and conclusions of the Appeals Board. The review of the record by the appellate court is to determine whether the Appeals Board's conclusion is supported by substantial evidence. (See LeVesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 657.) Eileen Crandall v. Workers' Compensation Appeals Board, Chumash Casino 9 WCAB Rptr. 10,332 [Writ Denied]

APPELLATE PROCEDURE - Petition for writ of review–Labor Code §5950–The 45-day time limit within which to file a petition for writ of review is jurisdictional. (See Camper v. Workers' Comp. Appeals Bd. (1992) 3 Cal.4th 679.) Wayne Husband v. Workers' Comp. Appeals Bd., University of California 9 WCAB Rptr. 10,268[Writ Denied]

APPELLATE PROCEDURE - Appellate review of Appeals Board decisions–The Court of Appeal will read into the general finding of the Appeals Board all specific findings on all factual issues that tend to support the award and have a substantial support in the record. (See Gaytan Engineering Company v. Ind. Acc.Com. (Rush) (1950) 95 Cal.App.2d 740.) In other words, the findings of the trier of fact are to receive such a construction as will uphold rather than defeat its judgment, and whenever, from the facts found by it, other facts may be inferred that will support the judgment, such inference will be deemed to have been made. (See Goldberg v. List (1938) 11 Cal.2d 389.) Ismael Medina v. Workers' Compensation Appeals Board, State Compensation Insurance Fund 9 WCAB Rptr. 10,117 [Writ Denied]

APPELLATE PROCEDURE - Petition for review–Labor Code §5950–A petition for writ of review may be taken only from a final order of the Appeals Board. A final order is one which determines any substantive right or liability of those involved in the case. (See Kaiser Foundation Hospitals v. Workers' Comp. Appeals bd. (1978) 82 Cal.App.3d 39.) Intermediate procedural or evidentiary decisions are not final for purposes of writ review. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 2 WCAB Rptr. 10,251.) [In this case, the chiropractor, asserting a lien, filed a petition for writ of review relating to an order taking the lien hearing off calendar for further discovery and an order denying removal and disqualification.] Jeffrey W. Vallandingham, DC v. Workers' Compensation Appeals Board, Jack-in-the-Box (Andrea Cortez) 9 WCAB Rptr. 10,066 [Writ Denied]

APPELLATE PROCEDURE - Labor Code §5952–As a reviewing court, the Court of Appeal is precluded from substituting its view of the evidence for that of the Appeals Board. (See Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993 16 Cal.App.4th 227.) The Court of Appeal is not permitted to reweigh the evidence or to decide questions of fact. (See Georgia Pacific Corp. v. Workers' Comp. Appeals Bd. (1983) 144 Cal.App.3d 72.) J.D. Murray Sheet Metal v. Workers' Compensation Appeals Board (Tamara Murray) 9 WCAB Rptr. 10,066 [Writ Denied]

APPELLATE PROCEDURE - In reviewing whether a WCAB order, decision or award is supported by substantial evidence, an appellate court may not reweigh the evidence to decide disputed questions of fact. (See Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 227.) APPELLATE PROCEDURE - An appellate court is bound by the WCAB's credibility determinations. (See Pettigrew v. Workers' Comp. Appeals Bd. (2006) 143 Cal.App.397, 8 WCAB Rptr. !0,299.) Steven Elmore v. Workers' Compensation Appeals Board, Elliott Laboratories 9 WCAB Rptr. 10,068 [Writ Denied]

APPELLATE PROCEDURE - Final order for purposes of appellate review of an Appeals Board decision is one that settles an issue critical to the claim, even if it does not resolve all the issues in the proceeding or represents a decision on the right to benefits. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068. 2 WCAB Rptr. 10,251.) [In this case, the Appeals Board determined that failure to comply with utilization review timelines prohibits an employer from using the utilization review procedure or admitting utilization review reports into evidence.] ___Cal.App.4th___

APPELLATE PROCEDURE - Review of record on appeal—With regard to credibility of witnesses, the Appeals Board may believe and accept a portion of a witness's testimony and disbelieve the remainder. On review, the appellate court must accept the portion that supports the judgment, not the portion that would defeat, or tend to defeat, the decision. (See Industrial Indemnity Company v. Ind. Acc. Comm. (Varela) (1953) 115 Cal.App.2d 684.) Jimmy Donner v. Workers' Compensation Appeals Board, SC Club dba Key Club 8 WCAB Rptr. 10,341 [Writ Denied]

APPELALLATE PROCEDURE- The Appeals Board determines the credibility of witnesses and the weight of the evidence. (See Clendaniel v. Industrial Accident Comm. (1941) 17 Cal.3d 659,) Credibility of witnesses is not a question of law. (See Gaytan Engineering Company v. Industrial Accident Com. (Rush) (1950) 95 Cal.App.2d 740.) The Court of Appeal may not reject testimony believed by the Appeals Board unless its falsity is apparent without resort to inferences or deductions. (See Lockheed Aircraft Crop. V. Industrial Accident Com. (Janda) (1946) 28 Cal.2d 756.) The Appeals Board may believe and accept a portion of a witness' testimony and disbelieve the remainder. On review, the Court of Appeal must accept the portion that supports the judgment, not the portion that would defeat or tend to defeat the judgment. (See Industrial Indemnity Co. v. Industrial Accident Com. (Varela) (1953 Cal.App.2d 684.) Exide Corporation v. Workers' Compensation Appeals Board (Juan Alvarez) 8 WCAB Rptr. 10,071 [Writ Denied]

APPELLATE PROCEDURE- An appellate court may treat as waived an issue that, although raised in a brief, is not supported by pertinent or cognizable legal argument of proper citation to authority. (See People v. Ashmus (1991) 64 Cal.ed 932.) Cingular Wireless v. Workers' Compensation Appeals Board (Mylinh Whitman) 8 WCAB Rptr. 10,021 [Writ Denied]

APPELLATE PROCEDURE- Reweighing the evidence–Labor Code §5952–The Court of Appeal will not reweigh evidence or decide disputed questions of fact. Geo Group/The Wackenhut Corporation v. Workers' Compensation Appeals Board (Stacy J. Ball) 8 WCAB Rptr. 10,009 [Writ Denied]

APPELLATE PROCEDURE– The review by the Court of Appeal of an Award of the Workers' Compensation Appeals Board is confined to the determination whether, under the applicable principles of law, the Award is supported by substantial evidence. (See Levesque v. Workers' Comp. Appeals Bd. (9187) 1 Cal.3d 627.) AT&T Broadband v. Workers' Compensation Appeals Board (Agustin Sanchez) 7 WCAB Rptr. 10,365 [Writ Denied]

APPELLATE PROCEDURE– An appellate court may treat as waived an issue that, although raised in a brief, is not supported by pertinent or cognizable legal argument of proper citation to authority. (See People v. Ashmus (1991) 64 Cal.ed 932.) Cingular Wireless v. Workers' Compensation Appeals Board (Mylinh Whitman) 8 WCAB Rptr. 10,021 [Writ Denied]

APPELLATE PROCEDURE– Reweighing the evidence–Labor Code §5952–The Court of Appeal will not reweigh evidence or decide disputed questions of fact. Geo Group/The Wackenhut Corporation v. Workers' Compensation Appeals Board (Stacy J. Ball) 8 WCAB Rptr. 10,009___Cal.App.4th___

APPELLATE PROCEDURE– The review by the Court of Appeal of an Award of the Workers' Compensation Appeals Board is confined to the determination whether, under the applicable principles of law, the Award is supported by substantial evidence. (See Levesque v. Workers' Comp. Appeals Bd. (9187) 1 Cal.3d 627.) AT&T Broadband v. Workers' Compensation Appeals Board (Agustin Sanchez) 7 WCAB Rptr. 10,365 [Writ Denied]

APPELLATE PROCEDURE– The failure to submit medical evidence of a theory of apportionment may result in denial of the petition for review and the granting of attorney's fees under Labor Code §5801. Airborne Express v. Workers' Compensation Appeals Board (Kelley Traylor) 7 WCAB Rptr. 10,247 [Writ Denied]

APPELLATE COURT PROCEDURE– A non-attorney may not represent another person or entity in court. (See Drake v. Superior Court (1994) 21 Cal.App.4th 1826.) [In this case, a hearing representative attempted to file a Petition for Writ of Review on behalf of a lien claimant.] Pleasanton Surgery Center v. Workers' Compensation Appeals Board (Alba Garcia-Cabrera) 7 WCAB Rptr. 10,157

APPELLATE COURT PROCEDURE– Transcript request–AAD Rule 10740–When a party's arguments are not supported by the record prepared by the WCJ, a party may request a transcript to resolve the specific defects in the WCJ's summary of the evidence. (See Allied Compensation Insurance Company v. I.A.C. (Lintz) (1961) 57 Cal.2d 115.) [In this case, defendant did not request a transcript and the appellate court had no record before it to support defendant's contentions that there were defects in the WCJ's summary of the evidence.] Waste Management v. Workers' Compensation Appeals Board (Shane Gorrell) 7 WCAB Rptr. 10,141

APPELLATE PROCEDURE– When the Appeals Board denies or dismisses a petition for reconsideration, or has reached its decision on a record containing no new evidence, the petitioning party cannot attack the Appeals Board's action by another petition for reconsideration but must petition for a writ of review or be bound by the Appeals Board's final decision. (See Crowe Glass Co. v. Industrial Acc. Com. (Graham) (1927) 84 Cal.App.287.) Hartz Mountain Corporation v. Workers' Compensation Appeals Board (Richard Dorney) 7 WCAB Rptr. 10,110

APPELLATE COURT PROCEDURE– A petition for writ of review may be taken only from a final order of the Workers' Compensation Appeals Board. (See Marian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068[2WCAB Rptr. 10,0251].) In general, when the Appeals Board grants reconsideration, rescinds the WCJ's decision, and returns the matter to the trial level for further proceedings and a new decision, the Appeals Board has not issued a final order subject to a petition for writ of review. (See Travelers Ins. Co. v. Workers' Comp. Appeals Bd. (Taylor) (1983) 147 Cal.App.3d 1033.) Joel Martinez v. Workers' Compensation Appeals Board, County of Los Angeles 7 WCAB Rptr. 10,028

APPELLATE COURT PROCEDURE– When a party has filed a petition for reconsideration with the Appeals Board, but the party does not prevail on that petition for reconsideration, it cannot attack the Appeals Board's action by filing a second petition for reconsideration, rather, the party must either be bound by the Appeals Board's action or challenge it by filing a timely petition for writ of review. (See Ramsey v. Workmen's Comp. Appeals Bd. (1971) 18 Cal.App.3d 155.) Southern California Permanente Medical Group v. Workers' Compensation Appeals Board (Carol Belvins) 6 WCAB Rptr. 10,206

APPELLATE COURT PROCEDURE– Appellate Review of Order Granting Removal– Parties aggrieved on a Petition for Removal must file a Petition for Writ of Mandate to the Court of Appeal. (See Martin v. Workers' Comp. Appeals Bd. (1997) 59 Cal.App.4th 333.) In this case, the defendant challenged an order setting a second examination by an AME by filing a Petition for Removal, which was granted.] Lea Ytshaky v. Workers' Compensation Appeals Board, Lynn White, Specialty Risks. 6 WCAB Rptr. 10,176

APPELLATE PROCEDURE– When a petition for writ of review fails to furnish the court with argument or authority of points urged as grounds for reversal, the points in issue will be deemed to have been abandoned. (See Estate of Scott (1949) 90 Cal.App.21.) Mary Willis v. Workers' Compensation Appeals Board, State of California Department of Motor Vehicles. 6 WCAB Rptr. 10,176

APPELLATE REVIEW– An appellate court may not reweigh the evidence or decide disputed questions of fact by substituting its choice of the most convincing evidence for that of the WCAB. The credibility of witnesses, the persuasiveness or weight of the evidence, and the resolving of conflicting inferences are questions of fact. (See Western Electric Co. v. Workers' Comp. Appeals Bd. (1979) 99 Cal.App.3d 629.) Matinder Randhawa v. Workers' Compensation Appeals Board, Emanuel Medical Center. 5 WCAB Rptr. 10,320

APPELLATE PRACTICE– Time limit for filing petition for writ of review– Labor Code §5950– An application for writ of review must be made within 45 days after a petition for reconsideration is denied. The time limit is jurisdictional. (See State Farm and Casualty v. Workers' Comp. Appeals Bd. (1981) 119 Cal.App.3d 193.) P.W.G., Inc./ New Horizon Community Care & Rehabilitation Center v. Workers' Compensation Appeals Board, Uninsured Employers Fund (Annette Smith) 5 WCAB Rptr. 10,277

APPELLATE COURT PROCEDURE– The Court of Appeal may review a case and determine, based on the record in it's entirety whether the order of the WCAB was supported by substantial evidence. The Court of Appeal may not exercise independent judgment on the evidence. (See Lamb v. Workers' Comp. Appeals Bd. (1974) 11 Cal.3d 274.) The findings and conclusions of the Appeals Board on questions of fact are conclusive and final and are not subject to review. (See Labor Code §5953.) Penny Anu v. Workers' Compensation Appeals Board, Saddleback Memorial. 4 WCAB Rptr. 10,334

APPELLATE COURT PROCEDURE– Appealable judgment or order– A post judgment order which awards or denies costs or attorney's fees is separately appealable and if no appeal is taken from such an order, the appellate court has no jurisdiction to review it. (See Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35.) Danielle N. Macomber v. Red Robin International, Inc. 4 WCAB Rptr. 10,327

APPELLATE PROCEDURE– Writ of review from a final order of the Appeals Board– Labor Code §5950– To be the proper subject of a petition for writ of review, the order, decision or award of the Appeals Board must be final within the meaning of Labor Code §5950. (See Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528.) [In this case, the Opinion and Order Granting Reconsideration and Decision After Reconsideration rescinded the trial judge's award and the petition for writ of review was premature since there was no actual award for the court to review.] Juan Aguirre v. Workers' Compensation Appeals Board, Lioneira Co. 3 WCAB Rptr. 10,362

APPELLATE REVIEW– Scope of appellate review of Appeals Board decisions– Labor Code §5952– The review by the appellate courts of Appeals Board decisions is limited to a determination whether on the record presented the order, decision or award is supported by substantial evidence. Paula Letherblaire v. Workers' Compensation Appeals Board. 3 WCAB Rptr. 10,325

APPELLATE COURT PROCEDURE– Petition For Writ of Review– Labor Code §5950– A petition for writ of review may only be sought from "an order, decision, or award of the appeals board." While the statute does not expressly state that the order, decision or award must be "final," that requirement is well established. (See Gumilla v. Industrial Acc.Com., (1921) 187 Cal. 638; Safeway Stores, Inc. v. Workers' Comp. AppealsBd. (Pointer) (1980) 104 Cal.App.3d 528.) [In this case, the Appeals Board found that the WCJ used the wrong criteria in finding the applicant's average weekly earnings but also found that the record needed further development and rescinded the WCJ's decision, and returned the matter to the trial level for further proceeding and a new decision.] Gary Jernigan v. Workers' Compensation Appeals Board, State of California, Department of Corrections. 3 WCAB Rptr. 10,200

APPELLATE COURT PROCEDURE– Time period for filing a petition of writ of mandate from an order of the Labor Commissioner for failure to secure workers' compensation insurance– Labor Code §3725 prescribes a 45-day time period for filing a petition for writ of mandate from an order of the Labor Commissioner for violations of Labor Code §3700 for failure to secure workers' compensation insurance. Code of Civil Procedure 1013 is inapplicable and does not extend the time for filing a petition for writ of mandate an additional 5 days for service by mail. Division of Labor Standards Enforcement v. Atlantic Baking Company, Inc. 3 WCAB Rptr. 10,181

APPELLATE COURT PROCEDURE– Dismissal of Petition for failure to comply with Appellate Court Rules– A petition for writ of review will be dismissed if the petition does not include was exhibits, copies of: (1) each WCAB order, decision or award to be reviewed and (2) the WCJ's findings, opinion on decision and report and recommendation. Eel River Sawmills, Inc. v. Workers Compensation Appeals Board (Bonnie Cronquist) 3 WCAB Rptr. 10,147