Special Report: WCAB Must Act on Petition for Reconsideration Within 60 Days

The Workers' Compensation Appeals Board (WCAB) has historically and increasingly faced a struggle to handle the volume of cases that come its way. As a result, too often it has failed to take action on a filed petition for reconsideration within the statutorily required 60 days. To date, parties have been protected from that failure because it was deemed a due process right to have the petition reviewed by the WCAB. Currently, scores and perhaps hundreds of cases are in that situation. In a new appellate court case, Zurich American Insurance Co. v. WCAB, it all seems to have changed, leaving all those parties without a remedy, and changing the reconsideration demands on practitioners.

Labor Code § 5909 states, "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." It was not uncommon for the WCAB to grant reconsideration beyond the 60-day period due to its own errors or inefficiencies. But that practice might be over.

The WCAB has been relying on Shipley v. WCAB (1992) 7 Cal. App. 4th 1104, in which the 4th District Court of Appeal held that an injured worker should not be denied due process when the WCAB lost the file and did not issue a decision until after the period for a decision in LC 5909 had expired. Shipley stated, "While this language appears mandatory and jurisdictional, the time periods must be based on a presumption that a claimant's file will be available to the board; any other result deprives a claimant of due process and the right to a review by the board. ... Surely the Legislature did not write the statute in anticipation of a system so inefficient that such gaffes were statutorily provided for." The court added that the worker "did make inquiries and received reassurances from the board that his petition would be considered either after his file was found or after he reconstructed a duplicate file. Allowing the board to subsequently deny the petition by operation of law under section 5909 makes no sense."

So, in the 30 years since Shipley, the WCAB generally has held that if a petition was not considered within the time limits of LC 5909 due to the WCAB's own inadvertent error, it still may decide the merits of the petition, even if the 60-day time period has elapsed. An aggrieved party's remedy was to file a petition for writ of review on receiving the WCAB's decision.

But all that seems to have changed, with serious implications. On Dec. 18, 2023, the 2nd District Court of Appeal issued its decision in Zurich American Insurance Co. v. WCAB, holding that LC 5909 shows a clear legislative intent to terminate the WCAB's jurisdiction to consider a petition for reconsideration after the 60 days have passed, and decisions made after that date are void as in excess of the agency’s jurisdiction. That means if the deadline is missed, and the practitioner did not file a writ, the petition is lost. It applies to all existing cases of this sort.

THE FACTS

In Zurich, the California Insurance Guarantee Association (CIGA) filed a petition to join Zurich nearly 20 years after a worker's injury. The parties arbitrated whether Zurich was liable for payments to the worker, and the arbitrator concluded that CIGA's claim that Zurich provided coverage for the injury was not supported by substantial evidence.

On Aug. 31, 2021, CIGA filed a petition for reconsideration with the WCAB. Under LC 5909, the last day for the WCAB to act on CIGA's petition was Nov. 1, 2021.

On Dec. 7, 2021, Zurich filed with the WCAB a "notice of lodgment" requesting the WCAB to dismiss it from proceedings because the arbitrator's decision had become final. Zurich asserted that the WCAB did not act on the petition before the 60-day deadline, and, per LC 5950, CIGA did not file a petition for writ of review within 45 days from the date the petition for reconsideration was filed, so the petition was denied by operation of law.

On June 13, 2022, more than nine months after CIGA filed its petition, the WCAB issued an order granting the petition for reconsideration for the purpose of allowing it to further study the factual and legal issues. The WCAB attached a notice pursuant to Shipley, stating it first received notice of the petition for reconsideration on or about April 13, 2022.

In response, Zurich filed a petition for writ of mandate, per LC 5955, requesting that the court issue an order directing the WCAB to rescind its order of June 13, 2022, and dismiss Zurich as a defendant. The WCAB issued a letter stating that due to an "administrative irregularity," it did not receive the petition until after the 60-day period in LC 5909 had passed. It explained that delays in transmission from the district office to the WCAB often occur because of the "nature of EAMS" or "normal human errors," and that the irregularity was not within the control of the parties. The WCAB added that the arbitrator filed his report but did not submit to the district office an electronic copy of the complete arbitration file.

On request by the court, the WCAB confirmed that CIGA did not contact it while the petition for reconsideration was pending, but it believed that CIGA had a due process right to reconsideration by the WCAB regardless of CIGA's diligence.

COURT'S DECISION

The 2nd District Court of Appeal first rejected the WCAB's assertion that writ relief was not appropriate because its decision to apply an exception to LC 5909 constituted a discretionary application of the exception recognized in Shipley. The court concluded that a writ of mandate under LC 5955 was proper because determination of whether the 60-day deadline under LC 5909 is jurisdictional is a question of statutory interpretation, not administrative discretion.

The court explained that the Supreme Court has held that statutory provisions stating that petitions or other requests to an agency are deemed denied by a specified date limit an agency’s jurisdiction, and decisions made after the deadlines are void as in excess of jurisdiction. It explained that based on the plain language of LC 5909 and its legislative history, the WCAB cannot ignore the 60-day deadline, then rule on the petition for reconsideration, because after 60 days, the WCAB no longer has jurisdiction to consider the petition.

It explained that under the current statutory scheme, LC 5909 and LC 5950 work in tandem, providing certainty in LC 5909 as to when the deadline for seeking judicial review under LC 5950 commences. It believed that without an interpretation of LC 5909 that construes the deemed-denied language to terminate the WCAB's jurisdiction after the passing of 60 days, an aggrieved party would not know when to file a petition for a writ of review.

The court then disagreed with the conclusion in Shipley that a petitioner has a due process right to review by the WCAB of a petition for reconsideration even after 60 days have passed. Section LC 5909’s language is clear: If the WCAB has not acted on a petition for reconsideration within 60 days, it is deemed denied. It added that even if Shipley is read to allow some form of equitable tolling to extend the deadline in LC 5909, the exception must be applied only (1) when the petitioner acted diligently to protect his or her rights; and (2) the WCAB misled the petitioner in a manner that deprived the petitioner of a right to review by the WCAB or the appellate courts.

The court found that in the present case, CIGA made no inquiries prior to the expiration of the 60-day period on the status of its petition. It explained that although petitioners are not responsible for the deficiencies in the workers’ compensation appeals process, they are well aware of the delays in the process and the likelihood that a petition may be denied by operation of law if the WCAB does not receive it or the arbitration record. It found that CIGA took no action for nine months following the filing of its petition to inquire as to its status. It added that CIGA's remedy after its petition was denied by operation of law was to file a timely petition for writ of review under LC 5950. Because CIGA failed to take advantage of that remedy, the arbitrator's decision on Zurich became final.

Finally, the court explained that the California Constitution requires the workers’ compensation system to accomplish substantial justice “expeditiously” and “inexpensively.” It stated that LC 5909 furthers that purpose by imposing a limit of 60 days on the WCAB's jurisdiction to grant a petition for reconsideration, thereby ensuring the expeditious adjudication of a claim without allowing an open-ended extension.

ANALYSIS OF THE DECISION

Zurich represents a continuation of the Court of Appeals' curbing of the WCAB's failures to act as statutorily required. Earlier this year, in Early v. WCAB (2023) 94 Cal. App. 5th 1, the 2nd District Court of Appeal invalidated the WCAB's practice of granting petitions for reconsideration to further study the issues without first deciding whether reconsideration is warranted. As a result, the WCAB was and is compelled within the 60-day period to make a substantive decision regarding denial or granting of a petition. With Zurich, the WCAB is under even more pressure to act timely on petitions for reconsideration.

The resounding message from the Court of Appeal is clear: Strict compliance with the jurisdictional deadline in LC 5909 is non-negotiable. The WCAB must issue a decision on whether to grant reconsideration based on one of the grounds in LC 5903 within 60 days of the filing of a petition. Otherwise, the petition becomes denied by operation of law, and the WCAB loses jurisdiction to decide it. The proper remedy is a petition for writ of review, and if parties do not diligently make use of that remedy, the petition is lost.

This decision affects not only the WCAB, but also practitioners who have pending petitions for reconsideration. In Zurich, the Court of Appeal concluded that the WCAB's order granting reconsideration beyond the 60-day limit in that case was void. In Zurich, the WCAB stated that administrative irregularities that delayed transmission of a petition for reconsideration to the WCAB arose in approximately 1 percent of petitions before the COVID-19 pandemic, and 5 percent thereafter. So, it's possible that hundreds of petitions granting reconsideration outside the 60-day limit pursuant to Shipley are also void, rendering the original decision final.

Zurich did not address what effect its holding might have on past cases. There are three decades of cases in which the WCAB has granted reconsideration pursuant to Shipley beyond the 60-day limit, and in many of them, the WCAB rescinded, altered or amended the original decision beyond the 60-day period. One can imagine a case decades ago that did not comply with Zurich's requirements, but was continued, and even today benefits are being administered under findings and orders of the WCAB. Are the decisions and orders issued after the WCAB lost jurisdiction void? If so, might they be jurisdictionally invalid, and the benefits administered since then be called into question?

Furthermore, although Zurich attempted to reconcile Shipley by finding that it created a limited exception to LC 5909, Shipley could be and was interpreted by the WCAB as a broad exception to LC 5909 when the delays in meeting the 60-day limit were based on the inefficiencies of the workers' compensation system. That prompted Zurich to "disagree with the conclusion in Shipley... that a petitioner has a due process right to review by the Board after the deadline." So, arguably, there's a contradiction between the cases, and as decisions from different appellate districts issue, this may be an situation to be resolved by the California Supreme Court.

In any event, Zurich instructed, "Petitioners must be diligent –– promptly inquiring of the Board as to the status of their petitions and, if the Board does not act within the 60-day time period, seeking review of the deemed denied petition under section 5950 within 45 days." That should be followed even if Zurich and Shipley are not entirely reconcilable. So, moving forward, practitioners must follow up with the WCAB on the status of their petitions as the 60-day period approaches. If the WCAB does not grant reconsideration within that period, they must assume that their petitions have been denied by operation of law, and must further appeal to the appellate courts.

For further discussion on the WCAB's actions on a petition for reconsideration, see Sullivan on Comp Section 16.65 Petition for Reconsideration –– Workers' Compensation Appeals Board's Action.