The Workers’ Compensation Appeals Board’s 60-day deadline to act on timely petitions for reconsideration is tolled when an administrative error thwarts the 60-day deadline, according to a new significant panel decision.
The Appeals Board determined that it still had jurisdiction to rule on a timely petition for reconsideration in the case of Scheuing v. Livermore National Laboratory, 2024 Cal. Wrk. Comp. LEXIS 11, even though the Board did not meet its 60-day deadline to issue a decision. The 60-day deadline is set forth in Labor Code 5909, which states a petition for reconsideration is denied by operation of law if the WCAB does not act on it within 60-days of its filing.
In Scheuing, the applicant had filed a timely petition for reconsideration, but a lack of notice from a district WCAB office caused the Appeals Board to receive notice of the petition 60 days after the petition for reconsideration was filed. In summary, the Appeals Board didn’t receive the petition for reconsideration in a timely manner, and that was caused by an internal error. It was not an error that was caused by the parties.
As such, the WCAB cited a prior 1992 case where something similar happened, Shipley v. WCAB (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.CompCases 493]. In that case, the Court of Appeal ruled that the 60-day deadline is tolled when an administrative error occurs. (In Shipley, the error was that the Appeals Board had misplaced the file. Again, this was notable because the delay was not caused by the parties, but rather by the misplacement of the file.)
Given the nature of the issue, the Board, perhaps not surprisingly, noted the recent appellate decision in Zurich American Ins. Co. v. WCAB (2023) 97 Cal. App. 5th 1213, 89 Cal. Comp. Cases 1, and declined to follow the 2nd District Court’s strict interpretation of section 5909. In Zurich, the Court held section 5909’s 60-day timeframe is jurisdictional and if the WCAB fails to act within that timeframe it loses jurisdiction to act on a petition for reconsideration. The implication of that decision is the petitioning party must then file a petition for writ of review within 45 days of the expiration of that 60-day window or forfeit all appellate rights.
The WCAB in Sheuing sidesteps this decision claiming Zurich represents a split of authority, without citing any recent appellate authority to the contrary.
ALSO WORTH NOTING
Please recall that in June 2023, the WCAB issued a decision in Nunes v. DMV that it later reaffirmed in August 2023. Those decisions stated that Labor Code section 4663 requires reporting physicians to make medical apportionment decisions, and does not allow for separate “vocational apportionment” that fails to take medical apportionment into consideration. They also called for med-legal experts to comment on vocational rehabilitation experts’ reports.
In Scheuing, the court noted that the last AME report was from 2022, and that the Nunes decision had arrived after the last AME report. As such, the Appeals Board remanded so the AME could review any vocational rehabilitation evidence in lieu of the Nunes decisions.
The key takeaway from that finding is that parties, especially defendants, will really want to have their med-legal experts review and comment on vocational rehabilitation reports. Defendants should push their QMEs and AMEs to pay close attention to factual and med-legal evidence, to ensure that their apportionment withholds scrutiny.
CONCLUSION
It’s good to know that the WCAB is run by humans, and honors the longstanding remedy of tolling when an unforced error by the board threatens a party’s rights. Humans make mistakes from time to time, and that’s ok as long as those mistakes do not trample on an innocent party’s right to administrative (and later appellate) review and due process. The board made the right decision here.
Got a question about workers’ compensation defense issues? Feel free to contact John P. Kamin or Louis A. Larres. Mr. Kamin is a workers’ compensation defense attorney and equity partner at Bradford & Barthel’s Woodland Hills location, where he monitors the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist for WorkCompCentral, where he reported on work-related injuries in all 50 states. Please feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.
Louis A. Larres is a partner and area managing attorney at Bradford and Barthel’s Fresno office, and the director of the firm’s Appellate Division. Please feel free to contact Louis at llarres@bradfordbarthel.com or at (559) 221-6500.
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