In the case of Joseph Mayor v. Workers’ Compensation Appeals Board (W.C.A.B.) (2024) 104 Cal.App.5th 713, filed August 28, 2024, the Court of Appeal has issued a Writ finding that the former Labor Code (LC) section 5909 means what it says, and a Petition for Reconsideration is deemed to have been denied unless it is acted upon within 60 days from the date of filing. Accordingly, the Board’s action on a Petition for Reconsideration after 60 days exceeded its jurisdiction.
Importantly, while Mayor’s Petition was pending before the Court of Appeal, the legislature amended LC section 5909 so that the 60-day deadline now starts when the Workers’ Compensation Judge (WCJ) transmits the file to the Appeals Board, not when the Petition for Reconsideration is filed.
Nevertheless, a Writ was granted in the Mayor‘s case, and the defendant’s Petition for Reconsideration was denied.
In the Mayor, supra, on March 2, 2023, a WCJ issued an award of total permanent disability in favor of the applicant based on an industrial injury suffered in December of 2013 during his employment with Ross Valley. On March 23, 2023, a Petition for Reconsideration was filed. The applicant filed an Answer on April 3, 2023.
On June 5, 2023, 74 days after Ross Valley filed its Petition, Ross Valley wrote to the Board inquiring about the status of its Petition. On July 19, 2023, the applicant requested a hearing to enforce the WCJ’s award. Finally, on August 14, 2023, 144 days after Ross Valley filed its Petition, the Board issued a document entitled “Opinion and Order Granting, Petition for Reconsideration.” The Board, as part of issuing its Opinion and Order Granting petitioner reconsideration, attached an Order based on Shipley v. W.C.A.B. (1992) 7 Cal.App.4th 1104 [9 Cal.Rptr.2d 345, 57 Cal.Comp.Cases 493] allowing tolling of LC section 5909 as a matter of due process in cases of administrative delay. However, thereafter, Mayor wrote the Board in September of 2023 asking to clarify its prior Order and Petition. Without receiving a response, Mayor filed a Writ of Mandate on January 9, 2024. Shortly thereafter, the Appeals Board, on January 26, 2024, issued an Order granting the petitioner reconsideration, rescinding the WCJ’s Award and returning the matter to the trial level for further proceedings.
The Court of Appeal, in its decision, goes through the procedural and administrative history of a Board’s jurisdiction to order reconsideration. The court in Mayor noted that the Court of Appeal decision in Zurich American Insurance Company v. Workers’ Compensation Appeals Board (2023) 97 Cal. App. 5th 1213, indicated that a Board’s action after 60 days exceeded its jurisdiction.
In the Mayor decision, the Court of Appeal finds that former LC section 5909 was mandatory and that the Board exceeded its jurisdiction in purporting to grant Ross Valley’s Petition after 60 days had passed since Ross Valley filed it. The decision follows the reasoning in Earley v. W.C.A.B. (2023) 94 Cal. App. 5th 1, 11 that “a long-standing and incorrect procedure remains incorrect” regardless of the length of its function.
The Mayor Court issued a peremptory Writ of Mandate directing the Board to rescind its Order granting Ross Valley’s Petition for Reconsideration. The effect is that the Petition for Reconsideration was denied by operation of law and, therefore, the March 2, 2023 WCJ’s decision in favor of the applicant was final.
Of course, the Mayor decision is only valid under former LC section 5909. The newly promulgated terms of LC section 5909 do provide a tolling until the actual case file is sent to the Appeals Board by the WCJ. Once the 60 days have run, the WCJ’s decision would be affirmed as the Petition for Reconsideration would automatically be denied.
As a practice tip, the Mayor decision will likely have little effect as, at least for the next two years, the amended LC section 5909 (set to expire July 1, 2026) will apply.
By Kenneth W. Scott, Senior Counsel, Bakersfield Office
September 2024
