The Workers’ Compensation Appeals Board’s 60-day deadline to act on timely petitions for reconsideration is tolled when an administrative error thwarts the deadline, according to a new significant panel decision.

Louis A. Larres

The board determined that it still had jurisdiction to rule on a timely petition for reconsideration in the case of Scheuing v. Livermore National Laboratory even though the board did not meet its 60-day deadline to issue a decision. The deadline is set forth in Labor Code 5909, which states that a petition for reconsideration is denied by operation of law if the WCAB does not act on it within 60 days of its filing.

In Scheuing, the applicant had filed a timely petition for reconsideration, but a lack of notice from a district WCAB office caused the board to receive notice of the petition 60 days after the petition was filed. In summary, the board didn’t receive the petition for reconsideration in a timely manner, and that was caused by an internal error. It was not an error that was caused by the parties.

John P. Kamin

As such, the WCAB cited a prior 1992 case where something similar happened, Shipley v. WCAB. In that case, the Court of Appeal ruled that the 60-day deadline is tolled when an administrative error occurs. (In Shipley, the error was that the board had misplaced the file. Again, this was notable because the delay was not caused by the parties, but rather by the misplacement of the file.)

Given the nature of the issue, the board, perhaps not surprisingly, noted the recent appellate decision in Zurich American Ins. Co. v. WCAB and declined to follow the 2nd District Court’s strict interpretation of Section 5909. In Zurich, the court held Section 5909’s 60-day time frame is jurisdictional and that if the WCAB fails to act within that time frame, it loses jurisdiction to act on a petition for reconsideration. The implication of the decision is the petitioning party must then file a petition for writ of review within 45 days of the expiration of the 60-day window or forfeit all appellate rights.

The WCAB in Sheuing sidesteps this decision, claiming Zurich represents a split of authority, without citing any recent appellate authority to the contrary.

Also worth noting

Please recall that in June 2023, the WCAB issued a decision in Nunes v. DMV that it later reaffirmed in August 2023. Those decisions stated that Labor Code Section 4663 requires reporting physicians to make medical apportionment decisions and does not allow for separate “vocational apportionment” that fails to take medical apportionment into consideration. They also called for med-legal experts to comment on vocational rehabilitation experts’ reports.

In Scheuing, the court noted that the last AME report was from 2022 and that the Nunes decision arrived after the last AME report. As such, the board remanded so the AME could review any vocational rehabilitation evidence in lieu of the Nunes decisions.

The key takeaway from that finding is that parties, especially defendants, will really want to have their med-legal experts review and comment on vocational rehabilitation reports. Defendants should push their QMEs and AMEs to pay close attention to factual and med-legal evidence to ensure that their apportionment withholds scrutiny.

It’s good to know that the WCAB is run by humans and honors the long-standing remedy of tolling when an unforced error by the board threatens a party’s rights. Humans make mistakes from time to time, and that’s OK as long as the mistakes do not trample on an innocent party’s right to administrative (and later appellate) review and due process. The board made the right decision here.

Louis Larres is a partner and area managing attorney at Bradford and Barthel’s Fresno office and the director of the firm’s Appellate Division. John P. Kamin is a workers’ compensation defense attorney and equity partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.