ADJ10820377 · August 15, 2023

The WCJ's finding of 72% permanent disability was challenged by defendant; the Appeals Board granted reconsideration and remanded for further proceedings to consider a Compromise and Release settlement, without ruling on the merits of the rating.

From the decision · page 1Defendant, American Zurich Insurance Company, petitions for reconsideration of the Amended Joint Findings and Award (after Petition to Reopen) issued by the workers' compensation administrative law judge (WCJ) in this matter on November 19, 2020. In that decision, the WCJ found that applicant, while employed during the period January 1, 2007 to July 2, 2015, as a janitor by Oasis Outsourcing, Inc./ASC Process Systems sustained injury arising out of and in the course of employment to his neck, back, right shoulder, wrists, upper extremities, upper digestive system and consisting of hypertension and hernia, resulting in permanent partial disability of 72% in Case ADJ10820377.

The WCJ found applicant sustained injury resulting in 72% permanent partial disability.

Favours Applicant prevailed

This finding was challenged by defendant and is central to the petition for reconsideration.

From the decision · page 1Defendant, American Zurich Insurance Company, petitions for reconsideration of the Amended Joint Findings and Award (after Petition to Reopen) issued by the workers' compensation administrative law judge (WCJ) in this matter on November 19, 2020. In that decision, the WCJ found that applicant, while employed during the period January 1, 2007 to July 2, 2015, as a janitor by Oasis Outsourcing, Inc./ASC Process Systems sustained injury arising out of and in the course of employment to his neck, back, right shoulder, wrists, upper extremities, upper digestive system and consisting of hypertension and hernia, resulting in permanent partial disability of 72% in Case ADJ10820377.

The Appeals Board failed to act on the petition for reconsideration within 60 days due to misplaced file, tolling the statutory time limit.

Favours Applicant prevailed

This procedural fact allowed the petition to be considered despite the statutory deadline.

From the decision · page 2As a preliminary matter, we note that a petition for reconsideration is generally considered denied by operation of law if the Appeals Board does not grant the petition within 60 days after it is filed. (Lab. Code, § 5909.) However, we believe that "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice...." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493].) In Shipley, the Appeals Board denied the applicant's petition for reconsideration because it had not acted on the petition within the statutory time limits of Labor Code section 5909. This occurred because the Appeals Board had misplaced the file, through no fault of the parties. The Court of Appeal reversed the Appeals Board's decision holding that the time to act on applicant's petition was tolled during the period that the file was misplaced. (Shipley, supra, 7 Cal.App.4th at p. 1108.) Like the Court in Shipley, "we are not convinced that the burden of the system's inadequacies should fall on [a party]." (Shipley, supra, 7 Cal.App.4th at p. 1108.) In this case, the Appeals Board failed to act on the Petition for Reconsideration within 60 days of its filing through no fault of the parties. Therefore, we find that our time to act on the petition was tolled.

The parties filed a fully executed Compromise and Release settlement on July 31, 2023.

Favours neutral

This settlement prompted the Appeals Board to rescind the prior award and remand for further proceedings.

From the decision · page 1We granted reconsideration to further study the factual and legal issues presented.1 Subsequently, the parties participated in a commissioners' settlement conference at our request. On July 31, 2023, the parties filed a fully executed Compromise and Release in case ADJ10820377 and case ADJ10005589, a prior claim in which a stipulation that applicant sustained

Labor Code section 5909

A petition for reconsideration is generally considered denied by operation of law if the Appeals Board does not grant the petition within 60 days after it is filed (Labor Code section 5909).

The Appeals Board's failure to act within 60 days was tolled due to misplaced file, preserving the petition's viability.

From the decision · page 2As a preliminary matter, we note that a petition for reconsideration is generally considered denied by operation of law if the Appeals Board does not grant the petition within 60 days after it is filed. (Lab. Code, § 5909.) However, we believe that "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice...." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493].) In Shipley, the Appeals Board denied the applicant's petition for reconsideration because it had not acted on the petition within the statutory time limits of Labor Code section 5909. This occurred because the Appeals Board had misplaced the file, through no fault of the parties. The Court of Appeal reversed the Appeals Board's decision holding that the time to act on applicant's petition was tolled during the period that the file was misplaced. (Shipley, supra, 7 Cal.App.4th at p. 1108.) Like the Court in Shipley, "we are not convinced that the burden of the system's inadequacies should fall on [a party]." (Shipley, supra, 7 Cal.App.4th at p. 1108.) In this case, the Appeals Board failed to act on the Petition for Reconsideration within 60 days of its filing through no fault of the parties. Therefore, we find that our time to act on the petition was tolled.