ADJ11951678 — California WCAB decision

What the panel ordered

Denied defendant's Petition for Reconsideration of the Findings of Fact & Award issued by the WCJ on March 30, 2021.

Defendant filed a Petition for Reconsideration of the Findings of Fact & Award issued by the WCJ on March 30, 2021, which was denied by the WCAB panel decision on June 16, 2023.

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This docket was decided more than once. Shown here is the latest released decision; we also hold March 29, 2021.

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Reconsideration / removalDefendant prevailed

The petition for reconsideration was denied because the defendant's arguments were identical to those previously rejected and no new facts or law were presented. The WCAB also found no error in the WCJ issuing the Findings of Fact & Award during the 45-day writ of review period, as no stay of proceedings exists during that time.

From the decision · page 1Defendant seeks reconsideration of the Findings of Fact & Award (F&A) issued by a workers' compensation administrative law judge (WCJ) on March 30, 2021 wherein the WCJ found, in pertinent part, that applicant's claim is not barred by the statute of limitations (Lab. Code, § 5405).

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The Petition for Reconsideration was filed on April 23, 2021, but was unavailable to the Appeals Board due to administrative irregularity, tolling the 60-day period to act on the petition.

Favours Defendant prevailed

This tolling allowed the Appeals Board to timely consider and deny the petition within 60 days of receipt, preserving due process rights.

From the decision · page 3In this case, the Petition for Reconsideration was filed on April 23, 2021, but due to an administrative irregularity, the petition was unavailable to the Appeals Board until after 60 days from the time of filing. The administrative irregularity which caused the petition to be unavailable to the Appeals Board was not the fault of either party. Thus, pursuant to Shipley, the time to act on the petition was tolled until it became available to the Appeals Board. This decision is timely filed within 60 days of the Appeals Board's receipt of the petition.

The defendant's Petition for Reconsideration raised identical factual and legal arguments as a prior petition, which were previously rejected by the Appeals Board.

Favours Defendant prevailed

The Appeals Board denied the petition because no new facts or law were presented, making the petition impermissibly successive.

From the decision · page 4No party may file a successive petition alleging the same facts and the same law as was already determined by the Appeals Board. (Crowe Glass Co. v. Industrial Acc. Com. (Graham) (1927) 84 Cal.App. 287, 293 (Crowe Glass); Navarro v. A&A Farming (2002) 67 Cal.Comp.Cases 296, 299 (Appeal Bd. en banc) (Navarro).) The Court in Crowe Glass explained that,

There is no stay of proceedings during the 45-day writ of review period following the Board's decision, allowing the WCJ to issue the Findings of Fact & Award without error.

Favours Defendant prevailed

This fact supports denial of reconsideration based on the defendant's contention that the F&A was prematurely issued.

From the decision · page 4Pursuant to Labor Code § 5950, an "application for writ of review must be made within 45 days after a petition for reconsideration is denied, or, if a petition is granted or reconsideration is had on the appeals board own motion, within 45 days after the filing of the order, decision, or award following reconsideration."

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, 5909; Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104; Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625

A petition for reconsideration is deemed denied unless acted upon within 60 days of filing, but the time may be tolled if the petition is unavailable due to administrative irregularity, to protect due process rights.

The Appeals Board tolled the 60-day period due to administrative irregularity making the petition unavailable, consistent with due process principles.

From the decision · page 2Section 5909 provides that a petition for reconsideration is deemed denied unless the Appeals Board acts on the petition within 60 days of filing. (Lab. Code, § 5909.) However, "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]; see Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 635 fn. 22 [70 Cal.Comp.Cases 312] ["irregularity which deprives reconsideration under the statutory scheme denies due process"].) In Shipley, supra, 7 Cal.App.4th at pp. 1107-1108, applicant sought a writ of review of a decision of the Appeals Board denying his petition for reconsideration by operation of law (Lab. Code, § 5909). The Court there granted a writ of review, stating that while the "language [section 5909] 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." (Shipley, supra, 7 Cal.App.4th at pp. 1107-1108.)

Lab. Code, 5956

Filing or pendency of a writ of review does not stay or suspend the operation of any order, rule, decision, or award of the appeals board.

The WCJ did not err in issuing the Findings of Fact & Award during the 45-day writ of review period because no stay exists during that time.

From the decision · page 4Pursuant to Labor Code § 5950, an "application for writ of review must be made within 45 days after a petition for reconsideration is denied, or, if a petition is granted or reconsideration is had on the appeals board own motion, within 45 days after the filing of the order, decision, or award following reconsideration."

ADJ11951678 · June 16, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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