ADJ9773950 — California WCAB decision

What the panel ordered

Findings and Award issued November 23, 2020, rescinded; matter returned to trial level for further proceedings consistent with this decision.

Petition for reconsideration filed by defendant Employers Compensation Insurance Company (ECIC) seeking review of Findings and Award issued by workers' compensation arbitrator on November 23, 2020; petition was timely filed but Appeals Board failed to act within 60 days due to lack of notice; reconsideration granted to study factual and legal issues further.

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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 / removalApplicant prevailed

The Appeals Board failed to act on the timely filed petition within 60 days due to lack of notice, which deprived the defendant of due process; the Board equitably tolled the time to act until 60 days after notice was received and granted reconsideration to study the issues further.

From the decision · page 3In this case, the WCA issued the Findings and Award on November 23, 2020, and defendant filed a timely petition on December 17, 2020. However, the first notice to the Appeals Board of the Petition was on May 19, 2021. Due to this lack of notice, the Appeals Board failed to act on the petition within 60 days, through no fault of the parties. Therefore, considering that defendant filed a timely petition and that the Appeals Board's failure to act on that petition was in error, we find that our time to act on defendant's petition was equitably tolled until 60 days after May 19, 2021.

The rules the panel named

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

Labor Code section 5909

The Board must act on petitions for reconsideration within 60 days of filing unless tolling applies due to lack of notice.

From the decision · page 2Labor Code section 59092 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, supra, 7 Cal.App.4th at p. 1108; 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, 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, italics added.)

Shipley v. Workers' Comp. Appeals Bd. (7 Cal.App.4th 1103)

Due process requires notice and opportunity to be heard before depriving a party of a substantial right

The Board's failure to act on the petition deprived the defendant of due process, requiring tolling of the 60-day period and reconsideration.

From the decision · page 2Labor Code section 59092 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, supra, 7 Cal.App.4th at p. 1108; 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, 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, italics added.)

ADJ9773950 · September 6, 2024

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