Judicial review is a legal process where you ask a Supreme Court judge to review WCAT’s decision. Before deciding to apply for judicial review, it is important to understand the risks of going to court and the limits of what a judge can do.
What the judge can and cannot do
The judge’s job on judicial review is limited to reviewing the WCAT decision and the process that WCAT used to make the decision to see if it is so flawed or unfair that the decision cannot be allowed to stand. The government has given WCAT, and not the court, the power to make the final decision about workers’ compensation. This means the court will generally defer to WCAT and will not interfere with WCAT’s decision unless there is a very serious error.
A court will not overturn a WCAT decision simply because you think that the decision is wrong, or because you do not agree with the decision that was made, or because you want a second chance to argue your case. Judicial review is not a chance to just argue your case all over again.
Even if you win, the judge is not going to make a new decision saying what you should get from WCB. Rather, the judge will usually cancel WCAT’s decision and order that WCAT do your appeal over again without making the same mistakes again. This means that WCAT will hear your case again and make a new decision. There is no guarantee that you will win the second time around.
What are the risks?
If your employer fights you in court and you lose, you will likely have to pay your employer some money for the cost and hassle of coming to court. These are called “court costs”. You should assume that court costs could be several thousand dollars, although the exact amount will depend on how much work the case takes and how complicated it gets. This is a risk you must be prepared to take. Of course, if your employer fights you in court and you win, your employer will likely have to pay you some money for the cost and hassle of going to court. The person who loses may have to pay court costs even if the person who won did not hire a lawyer.
It is important to understand that the court costs you may have to pay your employer if you lose are different than the fees you pay the court to file your case. The fees you have to pay the court to file your case can be waived in advance if you cannot afford to pay them. But this does not mean that the court costs you have to pay your employer if you lose have been waived. In other word, you can be ordered to pay court costs to your employer even if you cannot afford to pay.
Although your employer may ask for court costs, the general rule is that WCAT cannot ask you to pay its court costs even if you lose. However, the general rule is also that WCAT does not have to pay your court costs if you win.
You should also understand that applying for judicial review is a lot of work. This guide will help you through it, but you must be prepared to put a lot of time and energy into your case.