Calif. Appellate Ct. Overturns WCAB Decision to Hear Petition After 60-Day Deadline Passed

A California appellate panel overturned a Workers’ Compensation Appeals Board ruling that “an administrative irregularity” allowed the board to waive the statutory 60-day deadline to act on an appeal from an administrative law judge’s order.

The Second Appellate District issued a writ of mandate on Monday directing the WCAB to rescind a decision to hear a petition from the California Insurance Guarantee Association that the board did not act on until nine months after it was filed.

“We conclude the language and purpose of section 5909 show a clear legislative intent to terminate the Board’s jurisdiction to consider a petition for reconsideration after the 60 days have passed, and thus, decisions on the petition made after that date are void as in excess of the agency’s jurisdiction,” the opinion says.

The ruling creates a split among the California appellate districts. The 2nd District panel said it specifically disagrees with a 1992 decision by a panel of the 4th Appellate District that the 60-day deadline dictated by Labor Code section 5909 can be tolled for equitable reasons. In that case, claimant Marshall Shipley was led to believe he could appeal an administrative law judge’s opinion once his lost claim file was retrieved or reconstructed. The 4th District panel ruled that Shipley’s petition could be heard because he was not responsible for the delay.

The panel said even if the Shipley case is allowed to stand, it would still reject CIGA’s petition because there is no evidence that CIGA acted diligently to ensure that its petition was acted on before the 60 days had elapsed. Shipley, in contrast, had contacted the WCAB to check on the status of his petition and was told to wait.

Zurich filed an appeal with the 2nd Appellate District after the WCAB agreed to consider CIGA’s petition to reconsider an arbitrator’s decision that Zurich was lot liable for a claim filed by Carlos Uribe for an industrial injury in September 2000. CIGA, which pays claims made against insolvent insurers, contends Zurich was on risk for an insurance policy issued to Uribe’s former employer.

Zurich contended that Uribe had not submitted adequate medical evidence and had failed to prove he was working at a job site insured by Zurich.

CIGA filed a petition asking the WCAB to reconsider the arbitrator’s decision on Aug. 31, 2021. Zurich filed a petition on Dec. 7, 2021 asking that it be dismissed from the Uribe case because more than 60 days had passed and the arbitrator’s decision had become final. CIGA filed a reply brief saying that the deadline should be tolled under the precedent set by Shipley. The association said its petition did not reach the reconsideration unit until 45 days after it was filed, leaving the board without adequate time to study the record.

The WCAB did not act until June 13, 2022, more than nine months after CIGA filed its reconsideration petition. Citing Shipley, the board said it would grant CIGA’s petition for reconsideration for the purpose of allowing an opportunity to study the factual and legal issues.

In a its opinion, the 2nd District panel said “…we reject the Board’s position the deadline may be extended any time the Board fails to act due to deficiencies in the administrative process.”

The board acknowledged in its decision that CIGA had not checked on the status of its petition before the 60-day deadline passed, but said its “overburdened staff” would be “overrun” if it had to contend with phone calls and emails from claimants and insurers asking about the status of their petitions.

In a footnote, the panel said it found the WCAB’s explanation for the delay “troubling.”

“Although petitioners are not responsible for deficiencies in the workers’ compensation appeals process, experienced workers’ compensation insurers such as CIGA (and its attorneys) are well aware of the delays in the process and the likelihood that a petition may be denied by operation of law if the Board does not receive the petition or the arbitration record,” the opinion says.