What the panel ordered
Petition for Reconsideration granted; matter referred for status conference; final decision deferred pending further review of merits.
Applicant filed a Petition for Reconsideration of the May 10, 2023 Findings of Fact and Order denying discrimination under Labor Code section 132a; the WCJ recommended denial and dismissal; the Appeals Board granted reconsideration and deferred final decision pending further review.
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.
The Appeals Board found that the Appeals Board's failure to act on the petition within 60 days was an error and granted reconsideration to allow further review of the discrimination claim under Labor Code section 132a.
From the decision · page 1Applicant seeks reconsideration and removal of the May 10, 2023 Findings of Fact and Order (F&O), wherein the workers' compensation administrative law judge (WCJ) found in relevant part that applicant was not subject to discrimination in violation of Labor Code1 section 132a and denied applicant's petition for a violation of section 132a.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant filed the Petition for Reconsideration on June 5, 2023.
Favours Applicant prevailed
This filing date triggered the 60-day period for the Appeals Board to act on the petition.
From the decision · page 2I. A petition 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. (Id. 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]." (Id.) In this case, applicant filed the Petition on June 5, 2023. Thereafter, the Appeals Board failed to act on the petition within 60 days, through no fault of the parties. Therefore, considering that the Appeals Board's failure to act on that petition was in error, we find that our time to act on applicant's Petition was tolled.
The Appeals Board failed to act on the petition within 60 days through no fault of the parties.
Favours Applicant prevailed
The failure tolled the time to act and justified granting reconsideration to protect applicant's due process rights.
From the decision · page 2I. A petition 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. (Id. 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]." (Id.) In this case, applicant filed the Petition on June 5, 2023. Thereafter, the Appeals Board failed to act on the petition within 60 days, through no fault of the parties. Therefore, considering that the Appeals Board's failure to act on that petition was in error, we find that our time to act on applicant's Petition was tolled.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 132a
Labor Code section 132a prohibits discrimination against workers injured in the course and scope of their employment and provides remedies including increased compensation, reinstatement, and reimbursement for lost wages and benefits.
The Appeals Board applied this statute to the discrimination claim raised by the applicant.
From the decision · page 2II. We also highlight the following legal principles that may be relevant to our review of this matter: "It is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment." (Lab. Code, § 132a.)
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About this page
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