PIONEERS OF CHANGE

As we celebrate Women’s History Month this March, we reflect on the profound impact women have had on the legal landscape, and society in general, throughout history. From fierce attorneys challenging discriminatory laws, to pioneering jurists shaping legal precedent, the contributions of women in law have been transformative. As a law firm that has been certified as a Women’s Business Enterprise (WBE) through the Women’s Business Enterprise National Council (WBENC), that is at least 51% owned and operated by women, we would like you to join us in recognizing the contributions of women throughout all industries!

WCAB LACKS JURISDICTION TO ACT ON PETITION FOR RECONSIDERATION AFTER 60 DAYS

The Court of Appeal for the 2nd District of California (hereinafter, appellate court) recently held that if the Workers’ Compensation Appeals Board (WCAB) does not act on a petition for reconsideration of a decision by a workers’ compensation judge or arbitrator within 60 days, the WCAB loses jurisdiction, and the petition is deemed denied by operation of law.

In September 2020, Mr. Carlos Uribe sustained an industrial injury while employed by XCEL Mechanical Systems, Inc. (hereinafter, XCEL), insured by Reliance Insurance (hereinafter, Reliance). Reliance subsequently became insolvent, and the California Insurance Guarantee Association (CIGA) assumed liability by operation of law. Almost twenty years after Mr. Uribe’s injury, CIGA filed a petition to join Zurich American Insurance Company (hereinafter, Zurich), arguing that Zurich provided coverage for XCEL at the time of Mr. Uribe’s injury.

The matter proceeded to arbitration on the issue of whether Zurich was liable for reimbursement for payments made by CIGA on Mr. Uribe’s claim. The arbitrator denied CIGA’s petition and found that CIGA’s claim that Zurich provided coverage at the time of injury was not supported by substantial evidence. CIGA filed a petition for reconsideration and the WCAB did not act on the petition within the 60-day timeframe allowed per Labor Code (LC) Section 5909. As a result, the petition was denied by operation of law.

Rather than filing a petition for writ of review in the Court of Appeal, CIGA filed a brief, arguing that the WCAB retained jurisdiction, because the petition had not been forwarded to the Board until approximately 45 days after the petition was filed. In support of its position, CIGA cited Shipley v. WCAB (City of Whittier), claiming that the WCAB’s jurisdiction continued beyond 60 days of the filing, because the board failed to act as a result of its own mistake, rather than a mistake by CIGA.

The WCAB issued an order granting reconsideration to allow further study of the record, more than nine months after CIGA filed its appeal. The order cited Shipley, noting that an order granting a petition for reconsideration is timely, if the order issues within 60 days of the WCAB receiving notice of the petition for reconsideration. The Board explained that it did not receive CIGA’s petition until after the 60-day timeline per LC Section 5909 had passed, due to an “administrative irregularity.”

In response, Zurich filed a petition for writ of mandate with the appellate court. The appellate court explained the legislative intent of the 60-day timeframe outlined in LC Section 5909, includes a consequence or penalty for failure to act within the jurisdictional timeframe. More specifically, the statute says that a petition will be deemed denied if no action is taken within 60 days. Further, the appellate court said that the state Supreme Court “has held that the statutory provisions stating that petitions or other requests to an agency are deemed denied by a specified date limit [in] an agency’s jurisdiction, and decisions made after the deadlines are void as in excess of jurisdiction.”

The Court reiterated that LC Section 5909 does not require the WCAB to issue a final determination within 60 days. Rather, the WCAB may grant a petition for reconsideration based on the evidence submitted or decide to grant reconsideration for further development of the record. In closing, the Court said that “the plain language of Section 5909 and its legislative history make clear what the Board cannot do – ignore the 60-day deadline and then rule on the petition for reconsideration – because after 60 days, the Board no longer has jurisdiction to consider the petition.”

PRACTICE TIP: If the WCAB does not act on a petition for reconsideration within 60 days after the filing of a petition for reconsideration, the WCAB loses jurisdiction and the petition for reconsideration is deemed denied by operation of law.

WCAB Lacks Authority to Act on Petition for Reconsideration After 60 Days | Workers Compensation News |

WorkCompCentral

B321864.PDF (amazonaws.com) 

SAN JOSE DISTRICT OFFICE RELOCATED

The Department of Industrial Relations (DIR) Division of Workers’ Compensation (DWC) recently announced that its San Jose District Office moved to a new location on February 22, 2024, located at:

224 Airport Parkway, Suite 600

San Jose, CA 95110

All office phone numbers will remain the same.

DWC Announces Relocation of San Jose Office | California Department of Industrial Relations 

CAL/OSHA CIVIL PENALTY AMOUNTS INCREASE FOR 2024

On January 1, 2024, the Division of Occupational Safety and Health (Cal/OSHA) increased maximum penalties for several violations. According to the DIR, the increased penalties are based on the Bureau of Labor Statistics’ report of the October Consumer Price index for All Urban Consumers (CPI-U) each year. The adjustment for this year’s inflation rate was approximately 3.24%.

As noted by the DIR, the maximum penalties for violations classified as Regulatory, General, Willful, or Repeat citations on or after January 1, 2024, are as follows:

  • The maximum penalty for General and Regulatory violations, including Posting and Recordkeeping violations is $15,873.
  • The maximum penalty for Willful and Repeat violations is $158,727.
  • The minimum penalty for Willful violations is $11,337.

 

The DIR encourages employers who have questions or need assistance with workplace health and safety to call Cal/OSHA’s Consultation Services Branch at 800-963-9424 or email their local Cal/OSHA Consultation office at InfoCons@dir.ca.gov.

Cal/OSHA Increases Civil Penalty Amounts for 2024 | California Department of Industrial Relations

This Bulletin was written by Steve Rosendin, Associate Partner in our San Francisco office.  A copy of this Bulletin and the most current twelve months are available on our website at www.mulfil.com/bulletins.

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