The California Supreme Court has granted the Workers’ Compensation Appeals Board’s petition for review in the case of Mayor v. WCAB. Mayor is published at 104.CalApp.5th 713.

James T. Witkop

The WCAB sought review of the 1st District Court of Appeal’s decision, which determined that the WCAB impermissibly granted reconsideration more than 60 days after the filing of the petition for reconsideration in violation of former Labor Code Section 5909. The WCAB has taken the position that the time to grant reconsideration should not begin until it is actually able to review the petition.

The high court's summary says the case presents the following issues:

• May the WCAB apply equitable tolling to act on a petition for reconsideration beyond the 60-day period provided in Labor Code Section 5909, when the board did not receive the petition for reconsideration until after the 60-day period has elapsed?
• Did the Court of Appeal act in excess of its jurisdiction in granting relief under traditional mandate where petitioner did not file a timely petition for writ of review pursuant to Labor Code Section 5909?

In a number of cases, the WCAB has been relying on the Shipley doctrine to grant reconsideration more than 60 days after the petition for reconsideration was filed. Shipley, a 1992 decision from the 4th District Court of Appeal, applied equitable tolling to a very specific set of facts and allowed what otherwise would have been untimely reconsideration.

The WCAB has been applying routine equitable tolling due to inefficiencies with the Electronic Adjudication Management System (EAMS). The "inefficiency" has to do with how and when the reconsideration file is transmitted to the commissioners. Apparently, in some cases, the commissioners are unaware that a petition for reconsideration has been filed until after the 60-day deadline to grant reconsideration has passed.

Despite the WCAB’s internal inefficiencies, I believe that the Supreme Court will follow the Mayor court’s decision.

Mayor followed the Zurich decision and agreed with its holding. Both cases considered Shipley and held that Shipley did not allow the WCAB to grant untimely reconsideration due to routine administrative error.

Zurich, a published 2nd District Court of Appeal decision from late 2023, held that a party must be misled by the WCAB’s conduct for equitable tolling to apply. Addressing Shipley, the Zurich court observed that the claimant in Shipley was assured that his petition for reconsideration would be reviewed after the 60-day deadline, since the WCAB had lost his file, which prevented timely review. When the WCAB later ruled that the petition for reconsideration was deemed denied pursuant to Labor Code Section 5909, Shipley sought review with the Court of Appeal.

The Shipley court focused on the WCAB’s assurance that it would review Shipley’s petition only to later rule that his petition for reconsideration was deemed denied by operation of law. The Shipley court concluded that the WCAB’s inconsistent conduct made "no sense" and applied equitable tolling.

In both Zurich and Mayor, the appeals courts held that routine administrative error does not overcome the 60-day review mandate in Labor Code Section 5909.

The California Supreme Court will now determine the issue.

My office has a pending petition for review with the California Supreme Court on the same issue, and we are anxiously awaiting the high court’s decision to grant or deny review.

James T. Witkop is the managing attorney of Bay Area workers' compensation defense firm Witkop Law Group.