Labor Code § 5909 governs the time within which the WCAB must act on a petition for reconsideration. Under the former version of the statute, a petition for reconsideration "is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date of filing." Under this provision, if a petition for reconsideration is not acted on within the 60-day period, it is deemed denied by operation of law.
There has been a long history here. The WCAB had struggled to meet the deadline established under LC 5909 and had found a way around it. It had developed a practice of invoking Shipley v. WCAB (1992) 7 Cal. App. 4th 1104 to self-toll the 60-day deadline and act on the petition after it expired. Under Shipley, the WCAB would claim administrative irregularities in receiving the case file and as such, justify delayed response. The WCAB maintained that Shipley recognized a due process right to board review of a timely filed petition that required tolling of the statutory deadline.
In time, frustrated parties had successfully brought this practice to the Court of Appeal. In Zurich American Insurance Co. v. WCAB (2023) 97 Cal. App. 5th 1213, the Court of Appeal held that it was impermissible and that the WCAB had exceeded its jurisdiction by acting on a petition for reconsideration after the statutory deadline. Even after that decision and other appellate decisions attempted to invalidate the process, the board continued to justify its actions by claiming that those cases did not address whether LC 5909 was subject to equitable tolling, and that parties have a due process right to have their timely filed petitions for reconsideration heard on the merits.
On Aug. 24, 2026, the California Supreme Court issued its decision in Mayor v. WCAB (S287261), holding that the 60-day deadline in former LC 5909 is a mandatory procedural requirement and that the WCAB has no authority to equitably toll its own deadline to act. The decision disapproves Shipley to the extent it suggests that all parties have a due process right to appeals board review of a petition for reconsideration after the 60-day deadline expires.
Under Mayor, once the 60 days have passed without a decision by the WCAB, a petition is deemed denied. The filing party then has the requisite 45-day period to file a petition for writ of review with the Court of Appeal, but once that time passes, the denial of the petition becomes final. (See Sullivan on Comp Section 16.79 Appellate Review — Time Limit, Filing and Service.) Because the WCAB is not without jurisdiction to issue a decision after the 60-day period, it still may do so. But a party then may file a petition for writ of mandate to set aside that decision. If done timely, the party is protected from the WCAB's untimely decision.
In Mayor, a workers' compensation judge (WCJ) issued an award finding that an applicant was totally and permanently disabled. On March 23, 2023, the defendant timely filed a petition for reconsideration of the award. For reasons unclear in the record, the WCJ did not prepare a report or take any action on the petition within the 15 days required by regulation, and the WCAB took no action within the 60-day statutory period.
Seventy-four days after filing its petition, 14 days after the deadline had expired, the defendant sent a single letter to the appeals board inquiring about the petition's status. There is no indication the board responded. Nearly five months (144 days) after the petition was filed, the board issued an order granting reconsideration, accompanied by a notice invoking Shipley. The notice asserted that the WCAB had not received the petition until approximately June 15, 2023, and that its order could be considered timely if measured from the date it received notice of the petition rather than the date of filing.
The applicant filed a petition for writ of mandate in the Court of Appeal, arguing that the 60-day deadline was mandatory and that the appeals board had exceeded its jurisdiction in acting on the petition after it was deemed denied by operation of law. The court agreed, following Zurich, and issued a peremptory writ of mandate directing the WCAB to rescind its order granting reconsideration. The California Supreme Court granted review.
While review was pending, in July 2024 the Legislature enacted Assembly Bill 171. It amended LC 5909 to change the triggering date for the 60-day period from the date of filing to the date the trial judge transmits the case to the WCAB. Although that time limit was scheduled to sunset on July 1, 2026, the Legislature subsequently eliminated the sunset provision that would have reinstated the original filing date trigger, making the transmission date trigger permanent. (Statutes of 2026, chapter 83, § 19, effective July 13, 2026.)
The Supreme Court affirmed the Court of Appeal. It held that LC 5909 does not take jurisdiction away from the appeals board. It concluded, however, that the appeals board's practice of self-tolling the 60-day deadline is inconsistent with both the text and the purpose of LC 5909. It stated:
We conclude that the Appeals Board’s practice of self-tolling the 60-day deadline in section 5909 is not supported by the plain language of the statute or its purpose. The statute does not expressly permit the Appeals Board to consider a petition for reconsideration outside of the 60-day statutory period or to equitably toll the 60-day deadline. To the contrary, the statute’s plain language cuts off any further action by the Appeals Board after 60 days by deeming petitions for reconsideration denied by operation of law if the Board does not take action within that timeframe.
It explained, "The statute’s plain language indicates that its purpose is to limit the time for the Appeals Board to act so that petitions for reconsideration do not languish." It added that equitable tolling excuses litigants from filing deadlines such as statutes of limitations when equitable circumstances are present, and that the WCAB is neither a party nor a litigant in workers' compensation proceedings. Moreover, the three elements of equitable tolling — timely notice to the defendant, lack of prejudice, and reasonable and good-faith conduct by the plaintiff — are framed around a party's conduct, not an administrative board's own failure to receive a file. The court also found that Shipley did not consider the equitable tolling doctrine and could not support the appeals board's argument. The court formally disapproved Shipley to the extent it suggests that all parties have a due process right to board review of a petition for reconsideration after the 60-day deadline expires.
The court also rejected the WCAB's argument that due process required a decision on the merits of every timely filed petition for reconsideration. It found that this argument ignored the plain language of LC 5909 and rendered the statute superfluous. It also found the Legislature's decision to deem a petition for reconsideration denied if not timely acted on within 60 days to be a constitutional exercise of its plenary power. The court left open whether specific circumstances could give rise to a due process violation when a timely filed petition is deemed denied by operation of law, but held that it is the petitioner, as the adversely affected party, who must assert any such due process rights, not the administrative board that is tasked with ruling on the petition.
In addition, the court held that the 2024 amendment to LC 5909, changing the trigger from the filing date to the transmission date, supported the conclusion that the statute is not subject to self-tolling. It noted that the Legislature described the effect of AB 171 as simply “modif[ying] procedures by which the appeals board must act on a petition." It explained that by enacting that change, the Legislature demonstrated that it understood the distinction between the dates and knew how to accommodate the WCAB's receipt problem through statutory language. That it did not provide similar accommodation in the previous version of the statute confirms that none was intended.
The court concluded that the statutory deadline in LC 5909 creates certainty with respect to the deadline to file a petition for writ of review and when a workers’ compensation award is final. It found that the appeals board's practice of equitable self-tolling undermined that certainty. The court added that a petition for writ of mandate is the correct mechanism for a party to enforce the 60-day deadline in LC 5909 when a late decision is issued.
Mayor is a decision of the California Supreme Court and is therefore binding precedent on all courts and WCAB panels. The decision will have a significant impact on the law requiring practitioners to carefully monitor deadlines after a petition for reconsideration is filed. The decision also impacts prior cases in which the WCAB had granted reconsideration beyond the time limits specified in LC 5909.
Mayor permanently ends the appeals board's practice of self-tolling the 60-day reconsideration deadline by invoking Shipley, a practice that had allowed the appeals board to routinely act on petitions months and sometimes more than a year after they were filed.
The most operationally significant consequence of Mayor is the relationship between the 60-day deadline and the deadline to file a petition for writ of review under LC 5950. Under that statute, a party must file a petition for writ of review within 45 days after a petition for reconsideration is denied or, if granted, within 45 days after the decision after reconsideration. When a petition is deemed denied by operation of law under LC 5909, that 45-day clock begins to run immediately on expiration of the 60-day period.
Under the current version of LC 5909, the 60-day period for the WCAB to act on a petition begins from the date a trial judge transmits a case to the board. The Legislature's 2024 amendment, made permanent in 2026, addresses the systemic problem that generated the Shipley practice by ensuring that the board's 60-day period does not begin until the case file actually has been transmitted. The appeals board's receipt problem that prompted it to invoke Shipley should arise far less frequently. Mayor's holding that equitable self-tolling is unavailable, however, remains fully applicable to the current version of LC 5909.
For practitioners on both sides of a reconsideration petition, Mayor creates a critical monitoring obligation. Once a petition for reconsideration has been transmitted to the WCAB, the 60-day clock is running. If the board does not act within that period, the petition is deemed denied by operation of law, and the 45-day window to file a petition for writ of review in the Court of Appeal begins immediately. A party that waits for the appeals board to issue an eventual order, believing the Shipley practice will protect it, is at risk of having its writ deadline pass unnoticed.
Although the WCAB may not self-toll the 60-day deadline, a party adversely affected by a petition that is deemed denied by operation of law potentially may assert its own equitable tolling argument or raise a due process violation — but the burden falls on that party to establish the applicable elements. The board's inability to toll its own deadline does not extinguish a diligent petitioner's potential remedies in circumstances involving board misconduct or misrepresentation of the kind described in Shipley itself.
When the WCAB issues a late decision after the 60-day period has expired, that decision is in excess of its jurisdiction, and is voidable. It may still stand, however, if the proper appeal is not taken. A party seeking to set aside such a decision must file a timely petition for writ of mandate in the Court of Appeal. If it does not, the late decision will be enforceable as unchallenged and final.
Mayor devoted significant analysis to its holding that LC 5909 does not implicate the WCAB's fundamental jurisdiction. The Supreme Court explained that the WCAB did not lack fundamental jurisdiction to issue the order after the period ended. Instead, LC 5909 constrains the WCAB to act in a particular manner — to issue a decision within a 60-day period. If the WCAB issues a decision in excess of this authority, the Supreme Court held that a petition for writ of mandate filed in the Court of Appeal is the proper way for an affected party to enforce LC 5909.
The distinction has important practical consequences. If the 60-day deadline were jurisdictional, every decision issued by the WCAB after the deadline expired would be void ab initio (from inception), regardless of when or whether it was challenged.
Given that the Shipley practice operated for more than 30 years, such a holding would have called into question the validity of a substantial body of prior decisions — decisions on which subsequent proceedings, stipulations and awards were built. By holding instead that untimely decisions are voidable, rather than void, and that the remedy is a timely petition for writ of mandate, the Supreme Court has preserved the enforceability of prior orders that were not challenged, while providing a clear and workable remedy for parties adversely affected by future violations of the 60-day deadline.
For further discussion on petitions for reconsideration and the 60-day deadline under LC 5909, see Sullivan on Comp Section 16.65 Petition for Reconsideration — Workers' Compensation Appeals Board's Action. For additional discussion on the time limits for filing petitions for writ of review in the Court of Appeal, see Section 16.79 Appellate Review — Time Limit, Filing and Service.