The Workers’ Compensation Appeals Board violated Labor Code 5909 by granting reconsideration to a petition for reconsideration more than 60 days after it was timely filed and apparently lost in transit, according to a new decision from the California Supreme Court.
The state’s high court made the ruling in Mayor v. WCAB (Ross Valley Sanitation District), Case No. S287261. The ruling required the court to analyze a prior version of Labor Code 5909 that said the WCAB has 60 days to issue a ruling after a petition for reconsideration was filed.
Lawmakers later amended LC 5909 to clarify that the 60-day timeframe begins after the case file is transmitted to the WCAB for reconsideration.
PROCEDURAL HISTORY
In Mayor, the trial judge found that the applicant was entitled to permanent total disability. The defendant filed a timely petition for reconsideration.
Although the WCAB determined the petition for reconsideration was timely filed, it was not received by the WCAB until more than 60 days had passed since its filing. The WCAB received the petition 144 days after it was filed.
The WCAB granted the petition for reconsideration after determining that the concept of “equitable tolling” applied to LC 5909’s 60-day deadline.
Next, the applicant appealed to the 1st District Court of Appeal.
The 1st District Court of Appeal determined that the WCAB exceeded its jurisdiction by granting reconsideration outside of the 60-day deadline in LC 5909, and issued a writ of mandate calling for the WCAB to rescind its decision. The defendants appealed and the case went to the state Supreme Court.
THE DECISION
The state Supreme Court determined that the concept of equitable tolling applies to litigants who are seeking to dispute a statute of limitations that applies to the parties. But it does not apply to the WCAB’s own 60-day deadline under LC 5909.
“While there may be some narrow circumstances in which due process considerations could permit the Appeals Board to act outside of the 60-day deadline, Ross Valley (the defendant) has not asserted that its due process rights were violated, and automatic tolling of its own deadline is not the appropriate mechanism to resolve such concerns,” the high court wrote. “We therefore affirm the judgment of the Court of Appeal for writ of mandate.”
The justices determined that the defendant in the case should have filed a petition for writ of review after the 60 days had passed. Labor Code 5950 states that parties have 45 days to file a petition with the appellate court after an order, decision, or award from the WCAB.
“The statutory deadline in section 5909 creates certainty with respect to the deadline to file a petition for writ of review and when it is final,” the state Supreme Court wrote. “The Appeals Board’s practice of equitable self-tolling undermines this certainty.”
ANALYSIS
In hindsight, there are several things that the defendants in future cases will want to do to prevent this situation from recurring. Parties do have the ability to “check in” with the Appeals Board via phone or email to see if a petition for reconsideration was received and if a decision is pending.
In this case, the defendant did “check in” by writing a letter to the WCAB, but it was not until 74 days after the petition was filed.
And as most practitioners can attest, when one files a petition for reconsideration with the WCAB, most of us eagerly look out for the judge’s “Report and Recommendation.” Not only does this report tell us what the judge thinks of our petition for reconsideration, but it also serves as a hallmark that the court did indeed receive the petition for reconsideration and that it is making its way up to the Appeals Board.
It’s also worth noting that while this case was making its way through the appellate courts, lawmakers changed LC 5909 to say that the 60-day countdown starts when the case file is transmitted to the WCAB, as opposed to when the petition for reconsideration was filed. So it is highly unlikely that this exact fact pattern will occur again.
That being said, if a party feels the 60-day deadline under LC 5909 has passed, one could file a petition for a writ of review with the appellate court within 45 days of the deadline.
CONCLUSION
This is undoubtedly a harsh result for defendants who timely filed a petition for reconsideration. However, applicant’s attorneys will point out that their client had to wait three years for the appellate process to play out on a final award that was issued in 2023, and the state Supreme Court took note of that delay in its decision.
Parties on both sides of the aisle would be wise to take precautionary measures when procedural deadlines pass, such as checking in with the WCAB to see if the petition was received, and possibly filing a petition for writ of review with the appellate court even though the WCAB may still be working on the case. If you are the filing party of a petition for reconsideration, once that 60-day mark has passed per LC 5909 – you must file a petition for writ of review with the appellate court to preserve your rights.
On the bright side, at least LC 5909 has been amended to prevent this exact scenario from happening again.
Got a question about workers’ compensation defense issues or pending legislation? Feel free to contact John P. Kamin. Mr. Kamin is a workers’ compensation defense attorney and 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.
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